R v Danielle Pana

R v Danielle Pana - [2021] NSWDC 798 - NSWDC 2021 case summary — Zoe

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FACTUAL BACKGROUND

The detail of the factual background has been provided to the Court by way of a Statement of Agreed Facts.
The offender, Danielle Pana, was 28 years at the time of her offending conduct which took place in Sydney. She was in an intimate relationship with Robert Sloan. Ms Pana already had three children when she first met Mr Sloan. The children, two girls and a boy, were respectively aged 8 - Aubrey Pana, 5 - Henry Pana, and 4 years of age - Kelly Pana. The biological father of the older daughter, Aubrey Pana, was unknown. Henry and Kelly Pana shared the same biological father, Mr Steven Pana. A fourth child, a daughter, Quin Sloan, was subsequently born to the offender and Mr Sloan in 2019.
Until early 2018, Ms Danielle Pana was the principal or primary carer of the three children, Aubrey, Henry and Kelly.
In early 2018, the offender first came into contact with Robert Sloan via Facebook. In approximately May 2018, the three children in her care had an access visit with the father of the younger two children, Mr Pana. At the conclusion of that visit, he refused to return the three children to their mother, the offender, due to concerns which he apparently held over their care. Sometime later in 2018 the older child, Aubrey Pana, moved in with her maternal grandmother after deciding that she would rather live with her grandmother.
Some weeks after the children stopped living with their mother, she moved from Sydney to Queensland in order to live with Sloan.
In approximately October 2018, Pana and Sloan moved to Melbourne where they intended to reside. By that time, the offender was pregnant with Quin. Over the ensuing 14 months, the offender returned to Sydney to visit her first three children on more than 10 occasions. The children also visited their mother in Melbourne on two occasions. Following one of those visits, the offender told her own mother that Sloan had been hitting her. As a consequence of that disclosure, her mother said that the children would not be allowed to visit her in Melbourne.
In the latter part of 2019 the offender determined to move back to Sydney. She signed a lease for a public housing home and returned to Sydney on 19 October 2019. She left Quin and her father Robert Sloan in Melbourne. On 19 and 20 October 2019 a series of text messages were exchanged between the offender in Sydney and Sloan in Melbourne. Whilst the full detail of the messages which are relied upon as context evidence is set out in the Agreed Statement of Facts, the messages included the following: Offender: "Nooooo I kinda took pics that you requested but then deleted them because I felt bad lolz". Sloan: "Bullshit…Before you come back can you do it again plz plz plz" Offender: "I can't when I'm straight thooo but omg it started when [Kelly] went toilet and she calls out to me to help her I go in and she turns around bends over and full spreads her ass wide open and tells me can I wipe it for her…BRO". Sloan: "Lmao." Offender: "I wiped it a few times till it was clean then got my phone out and took a pic." Sloan: "Babe it's ok if you can't… dw". Offender: "Then deleted it coz the guilt kicked in FML. Haha." Sloan: "It's all good subject change then." Sloan: "Sorry I thought you felt guilty so I tried to make u feel better is all." Offender: "You are like the only person on earth that I can talk to about this without feeling guilty and you shut me down so now I don't want to say the rest lmaoo." Sloan: "No no no plz I want to hear". Sloan: "I love u and need u my wife." Offender: "Well then after that I was taking video on the sly when [Aubrey] and [Kelly] were getting changed…[Kelly] puts her pj shorts on without undies I'm like wait what about undies and then [Aubrey] starts explaining that they don't wear undies to bed anymore coz it's too uncomfortable so yeah and omg my face you should have seen it…In my head I'm like how convenient and then told myself to snap out of it lolz". Sloan: "Wow." Offender: "Then I deleted the video and I got Hella paranoid aye plus fuck all memory on this phone to even take vids or pics its annoying lol." Sloan: "I'll be down tho so you in a bit haha." Offender: "That's what I told myself but also wanted something to come back with to show you when we have our shot but keep buckling lmao." Sloan: "LOL. You should just say fuck it and do it." Offender: "Might try to clear memory on this shit phone tonight before I sleep and then offer to bath the kids tomorrow see what I can get k but no guarantees." Sloan: "I miss u like fucking crazy… sorry I know you trying to explain this and this is making me want u even more because ur one of a kind [Danielle]… u sick twisted bitch who I adore."
Later in the afternoon of 20 October 2019, Ms Pana showed her older daughter videos of herself (the offender) and Sloan engaging in sexual activity. She then sent a message to Sloan: "OMFG ok so she seen the pics right I'll tell you more about that later but mum and Pete went for a nap so I'm sitting there watching a movie with the kids and [Aubrey] was right next to me while I was looking at your pics and love hearting them I could see she was looking at them with me then I went to a vid of me sucking your dick and she was watching that too then I went to the video of me laying on my tummy with you on top of me covering my mouth and pounding my ass and [Aubrey] quietly says "was [Robert] annoying you?" I said "No bub he was making me feel really good" and then she didn't say nothing just in deep thought while I kept going through videos and [Kelly] walked over trying to look I said don't look bubba she said BUT [AUBREY] LOOKING and [Aubrey] denied it. I'm like no she isn't she's watching tv…So she thought I didn't know and kept watching everything I was looking at lmaoo".
The activity of exposing her older daughter Aubrey to the indecent video with the intention of grooming or making it easier for her to procure the child for involvement in unlawful sexual activity was subsequently charged as Sequence 1, namely grooming a child under the age of 14 years for unlawful sexual activity. This is an offence contrary to s 66EB(3) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 12 years imprisonment. There is a standard non-parole period of 5 years.
I observe in passing that the messages between the offender and Mr Sloan on 20 October, together with subsequent messages in early December, resulted in a charge against Mr Sloan of using a carriage service to solicit child abuse material. This charge against Mr Sloan was an offence contrary to subsection 474.22(1)(a)(iv) of the Criminal Code (Cth) and was Count 1 against him.
Some weeks later, on 4 December 2019, the offender Ms Pana and Sloan had a further exchange of messages which were relied upon as against Ms Pana as context evidence. The exchange of messages continued on Facebook Messenger on 6 and 7 December 2019 and also on 9 and 10 December 2019.
I do not propose to set out the full text of those messages in these Remarks. Some abbreviated extracts are as follows: Offender: "I can't get enough of these young girls getting treated like whores aye…Like no other porn compares now hahahaha… She is so slutty I can't even handle it aye haha…I love how easy they are to control. And abuse…I need to experience it for myself arghhhh."
In further text messages the offender said to Sloan: "I'll just tell you one thing I wanted to do while I'm still fried enough to say it…I know you prob don't want to hear about it…but I need to know your opinion if I should or shouldn't."
Sloan responded in due course: "…the last time I suggested things u snapped at me and wont trust me around ur kids, so yeah I honestly don't know what to say." The conversation continued with the offender saying that she wanted to show her daughter the pornographic website "mega" and apparently to show her a video where a child "puts it in her mouth". She said she would tell her daughter "look what she lets her mum's boyfriend do to her". The offender also messaged to Sloan that if they could sort things out, he would move to Sydney and they would have the child "full time". She told him: "We could have so much more fun with her…we could slowly start gapping her holes without worries about anyone else seeing her holes all red and sore". The offender also sent messages saying: "I want to get a little bit of rohypnol and give it to her before bed at mine and then when she is knocked out you have to tell me everything you want to see me to do to her…no limits and I'll send it to you…"
She subsequently sent further messages on 7 December telling Sloan "ok I was imagining how gorgeous [Aubrey] would look with your cock in her mouth for the first time…babe promise me you will moan her name, tell her how fucken gorgeous she looks when she sucks your cock." The offender further messaged: "babe I really wanna get her some toys that we can use to tickle her clit and also start stretching her holes open like a lot of girls on mega…" The offender told Sloan "I can't wait to start molesting her with you babe".
On 10 December 2019, the offender also told Sloan: "babe please remind me to pack one of our dildos when I come back to Sydney so I can get [Aubrey] to practice sucking on it."
Shortly after the exchange of messages on 10 December 2019 it would appear that the offender, Ms Pana, returned to Melbourne for approximately a week. On 18 December she again flew from Melbourne back to Sydney. On this occasion, she took her youngest child, Quin Sloan, with her. She spent the first two nights with her own grandmother. Her older daughter, Aubrey, also stayed at the premises.
Between approximately 11:30pm and midnight on the night she arrived, namely 18 December 2019, Ms Pana took three videos of her 8 year-old daughter Aubrey rolling around on a bed dressed in pyjama shorts with her underwear visible. The focus of the recordings was in between her daughter's legs. She also took three screenshots from one of the video recordings. These images and the videos were subsequently found on her mobile phone.
Sequence 29 in the multiplicity of charges subsequently preferred related to this incident. The offender was charged with using a child under the age of 14 to produce child abuse material, being an offence contrary to s 91G(1)(a). Such an offence, when prosecuted separately and on indictment, carries a maximum penalty of 14 years with a standard non-parole period of 6 years. That offence has been placed on a Form 1 which attaches to a similar substantive offence to which I will come shortly (Sequence 37).
The following afternoon, 19 December 2019, Ms Pana sent one of the videos of Aubrey on the bed the previous night to Robert Sloan. The following messages were then exchanged between them: Sloan: "Show her some vids or something fuck I want to eat her". Offender: "Hahahaha not yet fuck ya…Baby steps lmaooo. I wanna eat her too she's so gorgeous farrkkkk haha". Offender: "Hahahahaha shhhh that was just a tease…Whatever I manage to get for us to enjoy you won't see until I get home haha and I have been asking her things but she is scared of getting in trouble I can tell lolz."
The dissemination of the video recording was separately charged as disseminate child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). Such an offence carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period. The specific charge, Sequence 30, has been placed on a Form 1 document and attaches to a similarly charged offence relating to the same child (Sequence 41). I will come to that substantive charge in due course.
The offender and Sloan then engaged in a further conversation by way of exchanging messages. That conversation included the following: Sloan: "What have u asked her and babe if u get some things can u just show me some though". Offender: "I'm showing her videos but she doesn't know how to react lolz I'm guna ease up for abit lolz don't wanna freak her out" Sloan: "Oh wow what vids did u show her". Offender: "I just asked her if she would take a video dancing and lifting her skirt up coz I wana send to you and she agreed… when I send it to you send back saying something like wow I love her bum I bet all the boys at school look at her." Sloan: "Yes babe I can do that."
These messages form the basis for a further charge of grooming a child for unlawful sexual activity contrary to the provisions of s 66EB(3) of the Crimes Act 1900 to which I have already referred and carrying a maximum penalty of 12 years imprisonment. This charge was originally Sequence 4 and constitutes the second substantive offence before me to which the offender has pleaded guilty.
Later on the afternoon of 19 December 2019, Ms Pana took another two videos of her daughter Aubrey. Immediately before taking the video, the offender said to her daughter: "Can I take one photo of your bum for (Sloan)?...I want to see what he says. Please?" The child indicated to her mother that she did not want to and the offender said: "Just one quick, so I can send it to him." The child repeatedly said that she did not want to although she jumped up from a couch and pulled up her skirt exposing her backside with underwear on.
In one of the short video recordings, Aubrey stood up and again lifted up her skirt exposing her backside and underwear. The offender said "Perfect" whilst recording. The various videos taken at this time were subsequently located on the offender's mobile phone.
This conduct was charged as Sequence 31, namely using a child under 14 to produce child abuse material contrary to s 91G(1)(a) of the Crimes Act 1900. It has been placed on a Form 1 document attaching to a similarly charged offence (Sequence 37).
A short time after recording the videos, at 2:13pm the same afternoon, the offender sent one of the videos to Sloan in Melbourne. It showed Aubrey spinning around and lifting up her skirt. The sending of that video has been charged as a dissemination of child abuse material contrary to s 91H(2) of the Crimes Act 1900 and has been placed on a Form 1 document attaching to similar conduct in Sequence 41 to which I will come shortly.
An exchange of messages after the video was sent included the following: Sloan: "Wow she has nice bum I bet a lot of boys look at her."
The offender also sent a message: Offender: And the videos were just girls her age stripping and playing with themselves…She was all like "That's rude. They are crazy. I would never do that."
The offender also said: "lolz gotta get her away from my mum FFS lolz".
The description of videos having been shown to the child forms part of the factual matrix with respect to the second count before me, Sequence 4.
The offender also told her partner Sloan: "But it's all good I'll get the chance to take pics when she's asleep."
Sloan replied: "Hmmm yumm."
Pana sent: "Hehehe (wink emoji) Fuck this is me straight imagine with a dose of speed lmaooo."
The following day, 20 December 2019, the offender picked up her other two children, Henry and Kelly Pana, from their father's place. She took all the children back to her mother's place where it was intended that they would stay for a few days.
Shortly after midday on 21 December 2019, the offender took photographs of her daughter Aubrey and her younger sister Kelly bent over on a bed facing away from the camera. Both of the children had their dresses pulled up exposing their underwear. A separate charge has been preferred with respect to each of the children, namely using a child under 14 to produce child abuse material contrary to s 91G(1)(a) with respect to Aubrey (Sequence 33) and also with respect to Kelly (Sequence 34).
The charge relating to Aubrey has been placed on the Form 1 document attached to Sequence 37 to which I will come in due course while the charge relating to Kelly has been placed on a Form 1 document relating to Sequence 36, a substantive offence relating to that child which I will again come to shortly.
Shortly after 4pm the same day, Pana sent one of the photos of the two girls bent over the bed to Sloan.
Sloan sent a message back to her: "Ok ask em to pull there underw3ar up a bit…Fuck I love there asses."
The offender replied: "That was taken hours ago…I'll get (Quin) to bed and then see what I can do while home alone hehe."
Sloan replied: "Omg yes babe plz do…I'm playing with myself over (Aubrey) atm."
The transmission of the photo has been separately charged as a further offence of disseminating child abuse material contrary to s 91H(2). It was originally Sequence 35 and is the third substantive count before me for sentence. As noted earlier it carries a maximum penalty of 10 years imprisonment.
After sending the photograph to Sloan, the offender then took a series of 15 photographs of both of her daughters, Aubrey and Kelly. 8 of the photographs were of Kelly. Three of them depicted her bending over, displaying her backside whilst wearing underwear; five of them were of the child bending over without underwear on, exposing her anus; one photo showed her bending over and exposing her anus and genitals whilst the offender's left hand could be seen spreading part of the child's backside; and an "edited" copy of a photo of Kelly bending over with red scribble covering her anus and genital area.
The photographing of Kelly gave rise to a further charge of using a child under 14 to produce child abuse material contrary to s 91G(1)(a). This was charged as Sequence 36 and is the fourth substantive charge to which a plea of guilty has been entered. Such a charge carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 6 years.
The photograph in which the offender's left hand spreading her daughter's backside could be seen was separately charged as Sequence 39, namely sexual touching of a child under 10 years of age. Such an offence contravenes s 66DA(a) of the Crimes Act 1900 and carries a maximum penalty of 16 years with a non-parole period of 8 years when prosecuted separately. This offence has been placed on a Form 1 document attaching to Sequence 36, the fourth count to which I have just referred.
Seven photos were also taken of the older child, Aubrey. They similarly depicted three photos of the child bending over displaying her backside whilst wearing underwear; two photos of her exposing her anus and the back of her genitals. Aubrey has a hand on each cheek of her backside and was spreading them away from each other while the offender's left hand can be seen on Aubrey's left bottom cheek, pulling it to the side; a further photo of Aubrey on a couch without underwear with her legs spread apart exposing her anus and genitals; and a similar "edited" photo of the one with her sister with her legs spread apart and red scribble covering her anus and genitals.
The taking of the photographs of Aubrey constitute the charged offence of using a child under 14 to produce child abuse material contrary to s 91G(1)(a). This offence was originally Sequence 37 and constitutes the fifth substantive count in the sentence proceedings.
The sexual touching of a child under 10 derived from the photo depicting the offender's hand on Aubrey's left bottom cheek was separately charged as an offence contrary to s 66DA(a) as Sequence 38. It has been placed on the Form 1 document which attaches to the fifth count (Sequence 37).
The offender sent each of the edited photos of the children to Sloan in Melbourne. Following his receipt of the first edited photo of Kelly, Sloan sent a message to the offender: "Oh babe can you not blank it out plz let me blow over her." The sending of each of the photos constituted the dissemination of child abuse material contrary to s 91H(2). The forwarding of the photo of Kelly was charged as Sequence 40 and that of Aubrey as Sequence 41. Each of those charges is before the court as a substantive offence being respectively the sixth and seventh substantive counts in the sentence proceedings.
Later that same afternoon, Saturday 21 December 2019, the offender and Mr Sloan exchanged messages in which the offender described activity by her towards each of her daughters, Aubrey and Kelly, relating to her encouraging each of them to engage in sexual activity.
The messenger conversation included Sloan apparently asking for photos of Aubrey. He said: "Plz let me see (Aubrey) make her get me hard…Oi what are her fingers doing…how the fuck did you get her to do that." The offender responded: "Coz I busted her and (Kelly) last night she was making (Kelly) do things to her so I told her if she does what I tell her to do I won't tell everyone what she was doing with (Kelly)".
Later in the conversation, Ms Pana said: "I gotta give it a break for now don't want to upset her she was almost in tears just to get that pic trust me on this I'll get us there but slowly ok hehe and yeah but don't say anything about the pic she begged me not to show anyone…I reckon I can get (Kelly) to get really dirt but scared she will mouth lolz".
The offender then described having shown a photo which she had taken of Kelly exposing her "bum" to Aubrey. She said: "Then I showed (Aubrey) and told her that her sister is so much more fun than her lolz." The activity the offender described between herself and her older daughter gives rise to an additional count of grooming a child for unlawful sexual activity being an offence contrary to s 66EB(3). This was charged as Sequence 13 and is the eighth substantive count in the sentence proceedings before me.
In the course of the ongoing exchange of text messages, the offender described showing additional material to her older daughter Aubrey. She said to Sloan: "Hehehehe I wonder what made her tell (Kelly) to take her undies down and touch her...Maybe one of the videos I showed her of two little girls taking each others clothes off and touching each other lolz"
Sloan replied: "Oh fuck (Danielle) ur daughter is dirty lol". The offender said: "Well she is MY daughter what do you expect lmaooo".
That additional description of what she had shown to her daughter Aubrey was charged as Sequence 14 namely grooming a child for unlawful sexual activity pursuant to s 66EB(3). That charge has been placed on the Form 1 document which attaches to the grooming charge in Sequence 4 which is the second count in these proceedings.
The following day, Sunday 22 December 2019, the offender had an argument with her mother and subsequently returned to her grandmother's home. Later that afternoon, Ms Pana exchanged a series of messages with Sloan in which she described buying sexy clothes for her older daughter. She told Sloan that she would show him a few things that the child wanted her to get. She told Sloan "I don't know how far it will go but this is a starting point." She then sent to Sloan a screenshot of a website which sold G-strings. The offender said to Sloan: "She wants the pink and purple ones haha…And babe as long as you reassure me and make me feel secure and don't make me feel like you only want her and not me then we will be fine." Sloan responded: "Nah babe I want you both…they would look so sexy on her."
Later that evening the offender poured unidentified alcohol into a glass of lemonade being drunk by Aubrey. The Agreed Facts state that the child took a sip from the glass. Approximately an hour later, the offender told Sloan that the child was "being really weird". Sloan told her to research symptoms and dosage and age. The offender said "Babe she's acting drunk as fuck…bumping into everything and shit." The offender told Sloan she would send him a video of Aubrey. Sloan suggested that the offender was worried that if Ms Pana asked Aubrey if she wanted to lay down with her, the child might agree.
Approximately 10 minutes after those messages, the offender sent a video of her daughter walking into the bathroom. Aubrey appeared unsteady on her feet.
Sloan sent a message: "Hmmm fuck I wanna see you go down on her so bad." He said: "Convince her to ask in front of camera to let her enjoy a hot sticky load to swallow only me and u no what that means she had no idea or remember how she asked what she asked for how if was ever leaked if that makes any sense".
The offender replied: "What the fuck are you talking about… you need to chill out until I'm high k jesus christ lmaoo".
Sloan said: "Lol Yeah watching a vid which made me think more and Tara who begs her daddy for cum well I wanted something similar which she couldn't snitch on so I tried to code it a bit lol. All good don't stress I'll behave and wait for you".
The offender replied: "(Aubrey) is in bed hopefully asleep soon and when nan goes to bed I'll have some stuff and go from there ok and don't forget baby steps coz she doesn't think before she speaks she was just in bed saying "(Sloan) has a crush on me hahahaha" I told her to shut up god damn it lolz".
The action of providing alcohol to the child in order to facilitate her compliance has been separately charged as a further offence of grooming a child under 14 for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act 1900. This was originally Sequence 49 and is the ninth substantive matter before me.
Later that same evening, the offender took nine photos and a video of Aubrey while she was asleep. The first four photos were of the child's backside with her underwear on. The offender then pulled down the pyjama pants and took an additional five photos as well as a video of the child's bare buttocks.
These actions constitute an offence of using a child under 14 to produce child abuse material contrary to s 91G(1)(a) of the Crimes Act 1900. As noted earlier, such an offence carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 6 years. This offence was Sequence 42 and is the tenth substantive count in these sentence proceedings. It is the seventh count relating to actions directly committed with respect to the older child, Aubrey.
The Agreed Facts indicate that late in the evening of 22 December 2019, Sloan's Facebook account was deactivated by Facebook.
Over the following two days, 23 and 24 December 2019, the criminal offending of Ms Pana turned to her son Henry. As I indicated earlier in these Remarks, he was 5 years of age at the time.
On 23 December 2019, she took three photos and two videos of her son while he was sleeping. Two of the photos were of the young boy lying face down on a bed with his pyjama pants pulled down exposing his bare backside. In one of the videos the offender filmed herself touching Henry's bare buttocks. This conduct resulted in two charges: Sequence 43 namely using a child under 14 to produce child abuse material contrary to s 91G(1)(a) and Sequence 44 - sexual touching of a child under 10 contrary to s 66DA(a). The using child offence to produce child abuse material is the eleventh substantive count in these proceedings whilst the sexual touching offence has been placed on a Form 1 attaching to that substantive offence.
On the morning of Christmas Eve, 24 December 2019, the offender and Sloan communicated utilising the Facebook account of Sloan's mother as a consequence of Sloan's own Facebook account having been deactivated. In the course of their text messaging, the following exchange took place: Offender: "I got the dirtiest shit going through my mind and can't do shit about it for the second time I'm legit done with life lolz". Sloan: "Lol oh yeah what's going thru your mind". Offender: "I don't even know where to start…If (Quin) didn't wake up I'd probably be sucking the only cock in the house right now". Sloan: "Oh yeah…Then do it". Offender: "I was so close". Sloan: "(Quin) won't get in ur way let her watch".
The offender then sent Sloan one of the photos of her son's bare buttocks which she had taken the day before. The transmission of this photo has been separately charged as Sequence 45, disseminating child abuse material contrary to s 91H(2). As noted earlier, this offence carries a maximum penalty of 10 years imprisonment. It is the twelfth substantive offence in these proceedings.
The conversation continued: Offender: "I was this close then heard her crying…Now she's asleep in my arms and if I move she will cry and wake the whole house up". Sloan: "Come on babe it's now or never … suck on Henrys dick babe…U knw u want to lol". Offender: "Fuck yeah I do I know he would love mummy's mouth making his young cock hard". Sloan: "Then please can u for me…Let me see". Offender: "He would be keen aye? Like if he woke up and came out before anyone else and I made my move he would let me aye?...Boys love it right". Sloan: "Trust me he would coz I knw I would if I were him…So u gonna do it". Offender: "If I can get Quin out of my arms and stay asleep I will…I'll suck it for as long as he lets me". Sloan: "U knw what that's makin me go insane I wish I was there…Gently lay Quin down patting her". Offender: "I'll try babe".
In the course of the morning of 24 December 2019, whilst the offender was in her bedroom at her grandmother's premises together with Henry and Quin, she proceeded to record the audio of conversation between herself and her five year-old son. There were eight separate audio recordings in total. The Agreed Facts do not disclose the length of time during which they were recorded. I do not propose to recount the full detail of what has been extracted and placed in the Agreed Facts. However, the conversations included the following: Offender: "Yeah. My boobs are too warm. Oh. Look! Look! Give me your hand. Look feel how warm… Hmmmm. Your hands are nice and cold…. Your hands are cooling me down."
The offender also said to her child: "Show me how cold your hands are. Your hands are warm. Show me how cold. Ah just put it here. Just hold it. Oh, that's better." The five year-old can be heard saying: "But, but mum…" The offender also asked her son "Have you ever touched someone's boobies before?" The child said that he did not want to because it was rude.
The conduct which had been recorded gave rise to one charge of inciting a child under 10 to sexually touch contrary to s 66DA(b) (Sequence 46).
In the course of the further audio recording the offender asked Henry "can I tickle your doodle". She then proceeded to tickle the child's penis and said "Oh does it tickle. Hang on. I like it. Do you like it?" The touching of the child's penis in the way that it occurred was charged as Sequence 47 namely sexual touching of a child under 10 contrary to s 66DA(a). Both offences carry a maximum penalty of 16 years with a non-parole period of 8 years when prosecuted separately. Each of them has been placed on a Form 1 attaching to Sequence 19, a substantive offence to which I will come shortly.
In the course of further audio recording of the interaction between the offender and her son she was recorded performing oral sex on the child. In the recording the offender is heard to say "I'm going to lick it" and there were then what is described in the Facts as "mouth sounds" for a period described as "less than 20 seconds." The offender told the child "That's naughty. You can't tell anyone ok? Don't tell anybody." She also told the five year-old "It's our secret. Thank you for letting me do that…Ok, don't talk about it anymore."
The performing of fellatio upon the child has been charged, pursuant to the statutory definition, as Sequence 19 of sexual intercourse with a child under the age of 10. Such offending contravenes s 66A(1) of the Crimes Act 1900 and carries a maximum penalty of life imprisonment. Parliament has prescribed a standard non-parole period of 15 years.
Later that afternoon, the offender returned to Melbourne.
On 6 January 2020, Victoria Police received a referral from the National Centre for Missing and Exploited Children with respect to information which had been provided by Facebook in relation to the online activities of the offender and Robert Sloan.
On 7 January 2020, Victoria Police executed a search warrant at the Point Cook address of Sloan's mother where he regularly lived. The present offender also stayed at that address when in Melbourne. While the three elder children had remained in Sydney, the youngest child of the offender and Sloan, Quin, was with her parents in Melbourne. Amongst other items seized by police during the execution of the search warrant, a mobile phone belonging to Sloan included child abuse material in its electronic storage including material in a separate folder titled "(Aubrey) xx".
Both offenders were arrested. Following her arrest, the present offender was interviewed at Werribee Police Station. In the course of a lengthy interview, she told police that watching child abuse material enhanced her sexual relationship with Sloan by putting them both in the mood and getting them sexually aroused. She told police that Sloan had set up a 'Kik' account using her name and photo image because it made it easier for him to access and obtain child abuse material. It is understood that 'Kik' is an application regularly used by persons engaged in child pornography.
The offender told police that her partner Sloan had told her that he wanted to have sex with Aubrey. The offender claimed that she had made it clear to him that that would never happen. In the course of the interview the offender made admissions regarding the photographs which she had taken of her two older daughters whilst at her mother's home in Sydney. She said that she took the photos because she was under the influence of methylamphetamine or "ice" and that she wanted to impress Sloan. She told police that her mobile phone was not at the house when the search warrant was executed because she had given it to a "Cash and Go" lending facility as security for a short-term loan.
The following day, 8 January 2020, police attended the Cash and Go lenders at Werribee where they took possession of Ms Pana's mobile phone which she had left as security for a loan of $80.
In due course Victoria Police extracted a number of videos and images of the three children which had been taken by the offender. The videos and images were identified as child abuse material.
Included in the child abuse material located on the offender's mobile phone were two videos that had been downloaded from a website "mega" in June 2019. The first video depicted a child of approximately 5 years of age performing oral sex on an adult male. The oral sex continued until ejaculation and was some two minutes long. A second video which was approximately 3 and a half minutes in duration depicted a female child being incited by an adult male to digitally penetrate herself and then perform oral sex on the adult. A separate charge (Sequence 48) relating to possession of this downloaded child abuse material was also preferred against the offender. This constituted an offence contrary to s 91H(2) of the Crimes Act 1900 and is count 14 in these sentence proceedings.
In due course Victoria Police also obtained the text of conversations which had been conducted via Facebook messenger between the offender and Sloan.
During January and early February 2020 the children were variously interviewed by NSW Police and also by officers of Victoria Police. A subsequent offer to reinterview the offender was declined by her. The offender was subsequently extradited from Victoria to NSW on 12 June 2020. She has been in custody since the date of her arrest on 7 January 2020.

[5]

SUMMARY OF OFFENCES

I will incorporate a table setting out the individual offences and the relevant victim in each case as an appendix to these Remarks. It is, however, appropriate to summarise an overview of the offences which have been charged by reference to the individual children.
There are eight substantive charges relating to the offender's conduct with or toward the child or the distribution or dissemination of images of the eldest daughter, Aubrey. The first charge sequentially relates to grooming the child in late October 2019. The substantive charges thereafter relate to further grooming of the child on 19 December 2019 and activity which constituted further grooming on consecutive days namely 21 and 22 December. Two charges of using a child under 14 years of age for the production of child abuse material relate to activity and conduct on both 21 and 22 December 2019. An additional two charges relate to dissemination of images recorded by the offender which included images of Aubrey. Both dissemination offences occurred on 21 December.
With respect to the child Kelly, three charges derive from the involvement of that identified victim. Two charges relate to dissemination of material in which she was depicted, one of which coincides with one of the charges of dissemination relating to Aubrey as they were both in the same material. The sending of that material occurred on 21 December 2019. There was one substantive charge of using a child under 14 years for production of child abuse material relating to Kelly which also took place on 21 December.
With respect to her son Henry, the three charges relate to conduct which took place on 23 and 24 December 2019.
The last, and fourteenth substantive charge, relates to the possession of the downloaded child abuse material which had been downloaded in June 2019 and was discovered on the offender's mobile phone at the time the phone was retrieved by police.
As I indicated in the course of the narrative outline of the offending, there are 6 separate Form 1 documents. They include three Form 1 documents attaching to three substantive offences regarding the oldest child, Aubrey. There are a total of 8 additional offences which have been separated on each of the Form 1 documents by reference to the nature of the offending. There is one Form 1 including two additional offences with respect to the second victim Kelly and two Form 1 documents with respect to the child Henry relating to three additional offences. Those Form 1 documents will be taken into account in dealing with the respective substantive offences to which they attach.

[6]

VICTIM IMPACT STATEMENTS

Victim Impact Statements on behalf of each of the children were read to the court. The statement in relation to the oldest child, Aubrey, was read by her grandmother, Ms Anne Smith (a pseudonym). Ms Smith described the effect of the offences on her now 9 year-old granddaughter as having left the child feeling broken, distressed, betrayed and abandoned as her mother is absent from her life. She described the sense of shock and betrayal the child, and indeed the whole family, had endured. She said that the nightmare became a reality and was nothing short of a horror story. She described how Aubrey now has difficulty sleeping at night. She described her as angry and intolerant of her siblings.
Aubrey is no longer interested in things that she used to enjoy and has become angry and withdrawn. She sees a child psychologist weekly in an endeavour to deal with the emotional distress and anger that she feels. On occasion she becomes "explosively angry" and often cries about a nude photo taken of her being sent to the co-offender. She is highly distressed and agitated about the distribution of that photo on the internet. She has gone from being a happy, fun-loving child to a child that no longer trusts the people around her. She is depressed and tearful most days and is overeating as a consequence of her emotional distress. Aubrey wanted to talk with her grandmother about how she was feeling with regard to her own mother, the offender and said that she wanted to write it down. What the child wrote was included in the Victim Impact Statement. Relevantly, Aubrey wrote: "I feel like I was betrayed, I feel like I was left alone, I feel like running away and hiding. I feel hurt, I feel like that you don't like me sometimes. Sometimes when I am sad I feel like you wanted to hurt me. Sometimes it's like you never loved me. Sometimes when I achieved something at school I wish you were there to clap your hands. I feel like you wanted to make me sad."
On behalf of the two younger children, Henry and Kelly, a Victim Impact Statement was read by their biological father, Mr Steven Pana. Mr Pana described that the children were both devastated and had both been hurt by the actions of their biological mother.
The youngest, Kelly, often cried for her mother and asked why she can't see her and why she can't talk to her. Both of the children are described as having shut down. Their father said they do not talk about their emotions very often. When the youngest does, she often gets angry. She was described as having lost her innocence and often crying without understanding why. She had lost her happy-go-lucky personality and carefree attitude. Both children have lost part of themselves and also the chance to share their special occasions with their mother.
Henry was described as having lost a chance to share all his schooling and sporting achievements with his mother. He is described as not talking about his mother because he is too scared to. He has often woken up screaming "don't touch me". Sometimes he just wakes up in a pure panic. Their father believes that what took place will continue to weigh heavily on them as they grow up and get older and develop an understanding of what really happened to them.
Mr Pana described the children having lost their innocence and their trust in people they should be able to trust the most. They had lost the chance to have their mother as part of their lives.
I note that the court must consider the Victim Impact Statements which have been tendered. Those statements give appropriate colour to the undoubted profound and deleterious effects upon these particular victims of child sexual abuse.
The inevitability of psychological damage and the profound and deleterious effects upon such victims for many years has consistently been recognised by these courts. In a well-known judgment in the House of Lords, Baroness Hale of Richmond referred to the long-term and serious harm which premature sexual activity could occasion. Her Lordship's judgment and the reasoning for the absolute prohibition on sexual activity with a child was summarised by the NSW Court of Appeal in R v Gavel (2014) 239 A Crim R 469 at [110]: "This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]."
In the present matter, I accept the contents of the Victim Impact Statements. They provide support to the presumptive position that the offending conduct towards each of them has caused significant harm - see Basten JA in R v Nelson [2016] NSWCCA 130. That substantial harm is in accord with the impact of offending of this nature.

[7]

SUBJECTIVE FACTORS

The offender did not give evidence in the sentence proceedings. The subjective material was provided to the court by means of a psychiatric report from Dr Jeremy O'Dea, a psychological report from Mr Sam Borenstein, a Sentence Assessment Report, an affidavit from the offender's mother, Ms Anne Smith, and also from her grandmother, Ms Sarah Pana (a pseudonym). A letter of apology from the offender herself was also tendered.
The offender was born and raised in Liverpool, Sydney. She was born in 1991 and is now 30 years of age. Her parents separated before she was born. Her mother repartnered. Until the age of 10 she believed that her stepfather was her biological father. She described to the psychiatrist spending time with her biological father and his parents from about the age of 5 but she did not know that she was her actual father until she was 10 years of age. Her mother and the man she described as her stepfather had two boys who were respectively about 3 and 7 years younger than she was.
She described to Dr O'Dea, the psychiatrist, having been the victim of sexual and physical abuse as a child. The initial incident that she recalled was at a family barbecue when she was about 5 and the boyfriend of an older female cousin touched her inappropriately. She said that she had not told anyone about the incident at the time. She also described having been the victim of physical and sexual abuse from her stepfather. She described him using a belt or some other utensil from the kitchen to smack or hit her as a form of discipline. She described a particular incident of physical assault which occurred some years after her mother and stepfather had separated. She said they separated when she was about 9 and the particular incident occurred at about the age of 10. The incident was of sufficient seriousness to have resulted in the involvement of police. She described her mother having convinced her to drop the charges.
The offender also described having been the victim of sexual abuse from her maternal grandfather from about the age of 9. She said that the sexual abuse involved inappropriate touching and having been shown photos of naked girls on bikes. She said that she had told her mother about these incidents and her mother had taken her to the police station. Police advised her and her mother that he had moved to Adelaide.
I should observe in passing that there is no reference to any of this material in the affidavit of her maternal grandmother. These circumstances are, however, confirmed in the affidavit of the offender's own mother who describes having been told about sexual abuse towards the offender by her grandfather when she was about 9 years of age. Her mother said that the matter was referred to JIRT and that the offender was interviewed by police. The offender's mother had already ended her relationship with her own father after discovering that he had been showing the offender inappropriate pictures of girls.
It would appear that circumstances, which are not fully revealed, resulted in the three children, that is the offender and the two children born subsequently, being moved from the offender's mother's custody and residing with the offender's stepfather for some years.
It was during the time of living with the stepfather that the incident occurred with police being involved following an alleged physical assault.
Notwithstanding the matter not proceeding with police, the offender's mother said that she returned to the Family Court where at that stage she again was awarded custody of her own child, the offender.
Throughout her teenage years, the offender appeared to be quite troubled. Her mother described it as "problems with her using drugs, getting involved with boys, and missing school". The offender left school before completing Year 10. She received assistance from a counsellor whilst still at school. She left school to work full-time at Hungry Jacks. She became a daily user of cannabis. She was taken by her mother and her grandmother for consultations with her uncle, her mother's brother, who was apparently a psychologist. Both her mother and grandmother describe her having been diagnosed with a Borderline Personality Disorder.
The offender apparently attended TAFE although I have been provided with no information about the length of such attendance, nor any course which was being studied. I do, however, note that she told the psychologist, Mr Borenstein, that she had attempted to complete Year 10 via TAFE but that "it didn't work out". She described working for approximately 10 months when she was 17 years of age in an aged care facility. At about 18 years of age, she told the psychiatrist she had mental health issues and had attempted suicide on two occasions. She said that she had overdosed on medications that she had procured at home and was in a relationship that was both toxic and abusive.
She said that at 18 years of age, she left home and worked as a sex worker in a brothel for approximately one and a half years. She said that she pursued that occupation three days a week basically to support herself. In the course of working in the brothel she started to use other drugs and said that she was introduced to cocaine and ecstasy. She continued to smoke cannabis daily.
At the age of 20, she had her first child, Aubrey. At about 21, she commenced using crystal methamphetamine or "ice". Having started with occasional use, it progressed to 3 or 4 days a week. She commenced a relationship with Mr Pana, and her son Henry and her daughter Kelly were each born respectively in June 2014 and June 2015. The offender was 23 and 24 years of age respectively.
In 2016 and 2017 her mother and Mr Pana put an ultimatum to her that she would not have access to her children until she underwent drug rehabilitation. She attended Odyssey House where she underwent the Parents and Children Program for about 8 months. She described having done better than she expected to. However, she did not complete the course after what she called "a bit of a disagreement with staff members". She left the course and described relapsing into drug use when the children moved to live elsewhere.
As indicated earlier in these Remarks, she came into contact with her co-offender, Robert Sloan, via Facebook in early 2018. She moved to Queensland to be with him during 2018 before moving with Sloan to Melbourne in about October 2018 as I have described earlier.

[8]

CIRCUMSTANCES SURROUNDING OFFENDING BEHAVIOUR AND MORAL CULPABILITY

The psychiatrist, Dr O'Dea, did not diagnose the offender as suffering from a major psychiatric illness. He was, however, of the opinion that she had a history of a severe and longstanding Substance Use Disorder including at least specific use disorders relating to amphetamines, cannabis and benzodiazepine. While Dr O'Dea was not in a position to make a formal diagnosis of a Major Depressive Disorder or Borderline Personality Disorder, he opined that it was likely that she had at least a vulnerable personality with borderline traits of such disorders. Dr O'Dea expressed the following view in his report: "Whilst giving a clear causal explanation of human behaviour in general is a difficult endeavour, understanding sex offending behaviours by females remains an even more difficult (and) less well understood. As such, it may difficult to precisely apportion the relative contribution of Ms Pana's substance abuse, her own sexual deviance, including her paedophilia, and her relationship issues with her partner and her children at the time, to the causation of her sex offending behaviours. However, it is generally agreed that amphetamine abuse can and does heighten sexual urges and disinhibits behaviour; and that a significant component of relevant female sex offending behaviours can be understood in the context of the lead and/or coercion by their male co-offenders. That being said, females can and do engage in sexually deviant behaviours independent of male partners, and Ms (Pana) would satisfy the psychiatric diagnostic criteria for a paraphilic disorder, namely paedophilia, sexually attracted to both males and females, not limited to incest, non-exclusive type."
In consultation with the clinical psychologist, Mr Borenstein, the offender described herself and the co-offender watching child abuse videos depicting sex between adults and children, the children being of an age-range between toddlers and teenagers, as a precursor to having sex with each other. She described the two of them watching such videos whilst under the influence of drugs and in particular "ice". After having completed 8 months of the Odyssey House in-patient rehabilitation, she told Mr Borenstein that she had remained drug free for about 4 months. She relapsed into using" ice" in mid-2018.
She told the psychologist that she felt that she was groomed, much like she had groomed her own children, in her relationship with the co-offender. She claimed that he put ideas in her head. She said that Sloan had claimed that the offender's older daughter, Aubrey, had a crush on him. She said that she wanted to please him by taking the photos of her children. She said that when she was not taking drugs, she knew that it was wrong. She said, with the benefit of hindsight, that she had convinced herself it was okay. She described her co-offender as injecting crystal meth or ice into her. She said he had to do it because she did not like doing it and that she hadn't ever injected before meeting him.
Mr Borenstein was of the opinion that the offender's clinical picture was consistent with Borderline Personality Disorder. In his view she satisfied the diagnostic criteria for that disorder pursuant to the DSM-V.
The offender presented with a history which included self-harm following her incarceration for the present matters.
She described that being in a state of separation from the co-offender and also being in a state of sobriety, that she expressed feeling ashamed and disgusted with her behaviour and burdened by guilt. This led to her self-harm and referral to the prison psychiatrist who had commenced her on anti-depressant medication.
In the Sentencing Assessment Report, the offender advised the author that she had been manipulated by her partner and believed that her 8 year-old daughter was sexually interested in him. She said that she had enjoyed the attention that her partner gave her by accommodating his sexual desires and that she had "wanted to make him happy". She claimed to understand the seriousness of her offending despite initially having believed that "everyone was overreacting" about the offences. She had justified her offending against her 5 year-old son saying that she wanted to "take the focus away" from her eldest daughter. She said that she justified that sexual intercourse with her son "would be less traumatising for him as he is a boy".
I accept the opinion of Dr O'Dea regarding the difficulty in apportioning the relative contribution of the various identified different contributing causes with respect to her deviant sexual behaviour. Most of the factors might adequately be described as explanatory although they may also operate to some degree in diminution of the moral culpability of the offender for her conduct.
It has long been recognised that if a child sexual assault offender were themselves sexually abused as a child, such experience may have an impact on an offender's subsequent involvement in similar criminal conduct.
Detailed reference may be found in the Bugmy Bar Book chapter on 'Child Sexual Abuse'. That chapter collates research, commentary and findings in relation to child sexual abuse and the effect that it has on a person's behaviour, development, mental, physical and social wellbeing and subsequent involvement in the criminal justice system.
The involvement of the present offender in childhood sexual abuse as a victim is corroborated by the account in her mother's affidavit and I accept that childhood sexual abuse as described did occur. Research linking such abuse to disorders including personality disorders, together with the psychiatric and psychological material in the present matter, make it likely that such abuse against the offender had an impact on her involvement in the criminal conduct against her own children. I accept that this is relevant in an assessment of moral culpability; see R v Bugmy (2013) 249 CLR 571.
I note that notwithstanding that such factors are relevant in a reduction of moral culpability, the weight given to such a factor varies substantially according to the facts of an individual case. There is undoubtedly a wide discretion in assessing the weight appropriate to this factor - see R v AGR (NSWCCA, unreported, 24/7/1998).
AGR was subsequently approved in R v JAH [2006] NSWCCA 250 where a history of child sexual abuse in that matter was "of considerable significance". I should make it clear that the background of abuse does not excuse the subsequent criminal conduct. It does, however, place it in its proper context and recognises what is sometimes referred to as the bitter irony that individuals who themselves have been damaged by childhood sexual abuse have subsequently gone on to perpetrate the same damage on their own or other children as had been inflicted upon them.
The unstable and troubled childhood experienced by the offender, and her exposure to a level of sexual abuse at the hands of a number of other people, provide the background to her commencement of drug usage. It is submitted on her behalf that her drug use in such circumstances ought not to be considered a personal choice: see R v Brown [2014] NSWCCA 335. Her descent into a substance abuse disorder and her vulnerability to disorders including a Borderline Personality Disorder require careful consideration of the principles set out by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1. Her moral culpability may thereby be viewed as lessened to some degree.

[10]

REMORSE, CONTRITION, PROSPECTS OF REHABILITATION

The offender pleaded guilty at the earliest opportunity and is therefore entitled to a 25% discount on an otherwise appropriate sentence. In addition to her plea, she has written a letter of apology to the court. That letter is not on oath and has not been the subject of cross-examination by the Crown. The court should exercise appropriate reservation in accepting its contents - see R v Qutami (2001) 127 A Crim R 369; R v Imbornone [2017] NSWCCA 144.
The court has also received a letter which was apparently prepared by the offender to send to Mr Sloan. It was located by police in an envelope following the execution of a search warrant at Silverwater Prison. Whether the offender had given it to authorities to be posted or whether it was found in her cell having not been sent is unclear. On the inference, which I draw, that the offender had no advance knowledge of the execution of such a search warrant, the sentiments expressed in the letter might be accepted as a genuine reflection of her feelings.
The full letter has been included as part of Exhibit 2. I do not see the necessity to replicate it in detail in these Remarks. She described in that letter her disgust and shock at finding out that her co-offender had posted a photo that she had sent him of Aubrey, into an online forum. She described her inability to eat and sleep and having cut herself over and over as a consequence. She said that he had completely destroyed every last bit of her and that she will never forgive herself.
The letter, in terms, purported to be what might be described as a breakup letter. Both the psychiatrist and psychologist refer to her difficulties in breaking the emotional ties that she had with her co-offender and her mother and grandmother both make reference in their respective affidavits to apparent more recent contact between the offender and Mr Sloan. Her mother indicated that she had become aware of continuing contact in a conversation with the offender apparently in July 2021.
In her letter of apology to the court dated 10 August 2021, the offender writes quite eloquently regarding her apparent remorse. She spoke of her job as the mother of the children to fiercely protect them and to make them feel safe and secure. She acknowledged that she was meant to be the most trustworthy person in their lives. She said that she had failed them completely before she betrayed them. She acknowledged that the damage she had done will have lifelong effects. She said, "I feel sad, disgusted and ashamed that I put my own pathetic need to be loved and praised above the wellbeing of my own flesh and blood".
The offender acknowledged that she had struggled to put an end to the relationship with Sloan during her time in custody. She described having discussed her difficulties in this regard with the prison psychologist and having been provided with help and advice as how to effectively break up with him. She said that she was committed to having no further contact with him. She said that "no amount of words are enough to express the depths of my remorse".
Community Corrections assessed Ms Pana as having a medium risk of reoffending according to the Revised Level of Service Inventory. Dr O'Dea, consultant psychiatrist, referred to the difficulties with the risk profiles of female sex offenders but expressed the opinion that if the offender were to remain abstinent from alcohol and illicit substance use in the community in the long term and if she were to actively engage in an appropriate psychiatric treatment program and to be involved in intimate relationships with pro-social partners, it would then be likely that her risk of engaging in further sex offending behaviours in the community would be adequately and appropriately managed, and be potentially relatively low.
Mr Borenstein, clinical psychologist, appears to imply a degree of concern following his interview with the offender on 7 August 2020 that at that stage the offender remained in a relationship with the co-offender and did not blame him. Mr Borenstein thought that such issues needed to be addressed in the context of ongoing psychological treatment and that intensive treatment of her Borderline Personality Disorder and her development of relationship with "self" would significantly reduce the likelihood of the offending behaviours being repeated.
I note that a Case Note Report prepared by the psychology section at Silverwater noted that the offender "currently remains in a relationship with (Mr Sloan) via letters."
The Crown's submissions note that the letter of apology dated shortly before the sentence hearing is both self-serving and untested. In circumstances where the offender and co-offender are the biological parents of the child Quin, in the Crown's view it is likely that they will have future contact with respect to that child notwithstanding protective orders in place in Victoria.
I am ultimately of the view that prospects of rehabilitation are best viewed as guarded. I view the correspondence which the Court has received with some degree of circumspection.

[11]

AGGRAVATING FEATURES

The circumstances in which the various offences occurred require consideration. As the mother of each of the victims, the offences which the offender committed involved a very significant breach of trust on her part - see SAT v R [2009] NSWCCA 172 at [40] per Buddin J. In my view the circumstances of the present matter were a gross breach of that trust and the conduct of the offender towards her children was the antithesis of a close and loving relationship that each of those children was entitled to expect from their own mother.
The Court of Criminal Appeal recognised the vulnerability of children within a family situation in an often repeated observation found in R v Hudson (NSWCCA unreported, 30/7/1998). Their Honours, the late Justices Sully and Ireland in a joint judgment with which Spigelman CJ agreed, said: "Recognition is also given to the fact that children in a family situation are virtually helpless against sexual attack by the male parent and that children have a right to be protected from sexual molestation within the family and that this can only be achieved by the courts imposing sentences of a salutary nature."
That passage has been cited with approval in BJW v R [2000] NSWCCA 60 per Sheller JA (James and Dowd JJ agreeing) at [20] and is replicated in the Bench Book.
Their Honours' reference to such abuse being at the hands of a male parent undoubtedly reflected the majority of cases coming before the Court and undoubtedly their Honours' joint assumption that such conduct would not occur at the hands of a child's mother. I should note similar observations regarding the male parent in R v Dent (NSWCCA unreported, 14 March 1991 per Lee J; Gleeson CJ and Loveday J agreeing).
The circumstance that the victims were subjected to the conduct which is the subject of these proceedings in the sanctity of their own home, or of their grandmother's home, where they were entitled to feel safe and secure is further a relevant factor.
Whilst the age of the victims is a relevant factor, it is important to recognise that in most instances it is an element of the offence. In this regard, see generally R v AJP (2004) 150 A Crim R 575 at 585.

[24]

Grooming a child under 14 for unlawful sexual activity - Seqs 1, 4, 13, 49

There are four substantive offences of grooming a child under 14 for unlawful sexual activity. Each of those offences relates to the older child, Aubrey, and are respectively Sequences 1, 4, 8 and 9. Three of the offences, Sequences 1, 4 and 13, have a degree of similarity in that in each instance the grooming was constituted by showing the child material of a sexual nature.
With respect to Sequence 1, the offender showed Aubrey sexual videos of her own sexual activity with the co-offender, Robert Sloan. It was described as showing the offender performing fellatio on him and then vigorous anal intercourse.
The second offence, Sequence 4, involved showing Aubrey videos of children being sexual, stripping and playing with themselves. Whilst being under the age of 14 is a fundamental element of the offence, the circumstance that the child was well under that age, namely 8 years-old, is of relevance in an assessment of the objective seriousness.
The eighth offence in the substantive matters, namely Sequence 13, related to the offender showing Aubrey a photo of her younger sister in which her younger sister was bent over and exposing her anus and genitals and the offender telling Aubrey that "her sister is so much more fun than her". The Crown described this explicit image being shown of her younger sister as being accompanied by an attempt to emotionally exploit competitiveness with the younger sister.
The fourth substantive offence in this category (offence 9; Sequence 49) involves a different form of grooming, whereby the inhibitions of the child were sought to be reduced by giving her alcohol in order to facilitate her compliance.
Each of these individual acts of grooming has been charged and confined to discrete conduct on an individual occasion. The offending conduct which has been charged took place on the 20th of October and then on the 19th, 21st and 22nd of December respectively. The Crown submits that each of the grooming offences falls above a mid-range of objective seriousness. The defence submits that Sequence 4 falls at the bottom of the mid-range; that Sequences 13 and 49 fall below the mid-range; and that Sequence 1 falls towards the lower range for offences of this kind.
In my view, each of the grooming offences charged substantively falls within the mid-range of such offending. Grooming offences often culminate in the commission of more aggravated forms of physical sexual conduct. In my view it is an error to determine the seriousness of a grooming charge which has been preferred as a separate substantive offence by giving consideration to ex post facto outcomes. The fact that the grooming has been charged as discrete offences rather than an accumulation or continuing course of conduct requires consideration of the individual acts which are relied upon. For these reasons, I am firmly of the view that they fall within the mid-range.

[25]

Use child under 14 for the production of child abuse material - Seqs 36, 37, 42, 43

The second category of offences, considered logically, involve the use of a child under 14 years for the production of child abuse material. There are four substantive charges relating to the taking of either photos or videos which fall within this category. I observe in passing that there are an additional four such counts included on Form 1 documents.
Two of the substantive offences under s 91G(1)(a) relate to the taking of photos of Aubrey on 21 December and then on 22 December after the provision of the alcohol which forms the particular charge of grooming to which I have already referred. Those two offences are substantive offences 5 and 10, respectively Sequences 37 and 42.
With respect to Sequence 37, which involved 7 photographs taken of Aubrey on an occasion when she was together with her younger sister, Kelly, and various images were taken exposing the anus and genitals, the Crown submits that this conducts falls within the mid-range of objective seriousness. The defence submission is that these offences fall towards the bottom of the mid-range. Photographs being taken of an 8 year-old girl in circumstances where her mother abused the position of trust in which she was placed to take the photos for the apparent purpose of the sexual gratification of both herself but primarily her co-offender, fall in my view well within a mid-range of objective seriousness.
Whilst not directly relevant to the assessment of objective seriousness per se, particularly in circumstances where the conduct is the subject of a separate charge, albeit included on a Form 1, in the course of taking the photographs in Sequence 37 the offender used her hand to spread the child's backside for the purpose of taking the photographs. I note observations in the Court of Criminal Appeal regarding the placement of more serious offending on a Form 1, and note that particular sexual touching, charged contrary to s 66DA(a), carries a more substantial head sentence of 16 years with a standard non-parole period of 8 years, notwithstanding that the substantive offence to which it attaches carries a lesser maximum penalty and standard non-parole period.
In my view, the age of the child, the circumstance that the photographing took place in the company of her younger sister, and the circumstance that the offending use of the child involved actual touching, notwithstanding those matters being the subject of separate charges, place the seriousness of the offending at a higher level than circumstances in which such additional offending does not occur during the making of the child abuse material. The episode was, however, comparatively brief. It did not involve the children touching each other, and did not, other than the touching to which I have made reference, involve participation by an adult. The conduct, in my view, falls within a mid-range of objective seriousness.
With respect to Sequence 42, this related to the taking of 9 photos and a video of Aubrey while she was asleep in her bed after she had been affected by the supply of alcohol. Notwithstanding that the child was asleep, the Crown submitted that the circumstance of her being affected by alcohol and the offender having pulled her pyjama bottoms down while she was asleep so that she could be photographed and filmed place this offence above the mid-range of objective seriousness.
On behalf of the offender, the submission was made that Sequence 42 fell toward the lower end of the range for offences of this kind.
I am ultimately of the view given the short duration of what took place and the fact that the child, at the time of being used for the production of child abuse material was oblivious to or unconscious of it, leaves the matter within the mid-range of objective seriousness albeit slightly lesser than the other matters to which I have already referred.
Also falling within this category of offence is substantive offence 4 which was Sequence 36. This relates to the taking of 8 photographs of the child Kelly on the same occasion that a further 7 photographs were taken of her older sister, Aubrey. Kelly at the time was but 4 years of age. Similarly to the circumstance involving her older sister, during the course of the photographic session the child was touched by her mother's hand spreading her backside to expose her anus and genitals for the purpose of the photographs. The Crown similarly submitted that this offending was in the mid-range of objective seriousness. On behalf of the offender it was submitted that this offending fell just below the mid-range. The age of the child and the surrounding circumstances lead to a conclusion that falls well within the mid-range of objective seriousness.
The last charge relating to this category of offending, namely use of a child under 14 years for the production of child abuse material (s 91G(1)(a)) relate to the taking of three photographs and two videos of Henry on 23 December 2019 (offence 11; Sequence 43). The production of child abuse material resulted in the taking of three photographs and two videos of Henry whilst he was asleep in his bed. The offender had pulled the child's pyjama pants down and taken two photos with his face down and his pyjama pants pulled down and exposing his bare backside and a video of herself touching his bare buttocks. The sexual touching has been separately charged and placed on a Form 1 as comprising part of the overall use of the child for the production of child abuse material.
In the Crown's submission, the offence falls above the mid-range of objective seriousness taking into account that he was filmed sleeping in his own bed. On behalf of the offender, it is submitted that this particular offence falls towards the lower range for offences of this kind. Taking into account the circumstance that the child was but 5 years of age and whilst asleep in his own bed, it was the actions of his mother that used his body for such purpose, namely the production of child abuse material, tempered by the fact that he was asleep, leaves this offending within the mid-range of objective seriousness.

[26]

Disseminate child abuse material - Seqs 35, 40, 41, 45

The next relevant category in logical consideration relates to the dissemination of the child abuse material constituted by the transmission of various of the videos and photographs by the offender to Robert Sloan in Melbourne. There are four substantive offences relating to the dissemination by the offender of photos or videos that she had taken of her children.
On 21 December, shortly after midday, the offender had taken photographs of Aubrey and her younger sister Kelly bent over on a bed facing away from the camera. Separate charges to using each child to produce child abuse material were charged with regard to these events (Aubrey Sequence 33; Kelly Sequence 34). Each of those offences as I have indicated much earlier in these Remarks have been placed on Form 1 documents. The transmission of one of the photos depicting the two girls in the fashion described was sent to Sloan shortly after 4pm that day. The single transmission of that photo is relied upon as substantive offence 3, Sequence 35. In the Crown's submission, this offence falls in the low range of objective seriousness. I agree.
Offences 6 and 7 respectively sequences 40 and 41, were constituted by sending two photos taken in the series of 15 (7 of Aubrey and 8 of Kelly) which were the subject of Sequences 36 and 37. The two photos which were transmitted were an edited photo of each girl respectively with red scribble covering the exposed anus and genitals of the child in each photo. This dissemination offence, in the Crown's submission, fell within the low range of objective seriousness due to the covering or obscuring of their exposed genitals and anus. I agree with that categorisation.
The fourth offence in this category (Sequence 45) related to sending a photo of Henry's bare buttocks which had been taken on 23 December 2019 electronically to Sloan on 24 December 2019. The transmission of this single photo of the child's bare buttock taken while he was asleep falls to the lower end of objective seriousness for offences of this kind.

[28]

Sexual intercourse with a child under 10 - Seq 19

The last substantive offence (offence 13; Sequence 19) is the most serious in the categories of criminal conduct charged against the offender. It relates to the act of fellatio which constitutes sexual intercourse with a child under 10. She committed that offence in the circumstances described earlier on her 5 year-old son in circumstances where she recorded the incident in an audio recording made at the time.
On behalf of the Crown, it was submitted that the performing of oral sex on Henry, taking into account his age of 5 being well under the relevant statutory specified age of under 10, would lead to an assessment that this offending fell above the mid-range of objective seriousness. On behalf of the offender, it was submitted that although the degree of physical conduct was significant, the duration was very brief being a period of no more than 20 seconds. The absence of coercion was conceded to have less weight given the offender's position of authority as the child's mother. The offending clearly took place following what might generally be described as inciting and grooming type offending culminating in the charged act. Notwithstanding that it was the most serious of the offences committed against Henry, the defence submitted that it fell below the mid-range for offences of this kind.
The Court of Criminal Appeal in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 dealt with an appeal by the Crown against the asserted manifest inadequacy of a charge relating to a single count of sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act 1900. The male offender was the uncle of the complainant who was an 8 year-old girl. In the course of the events which took place, the offender had forced the child complainant to perform fellatio upon him until his previously flaccid penis became erect. He then ordered her to remove her clothes and sat her on his lap whilst naked and moved her body so that his erect penis was rubbing against her vagina.
After outlining relevant factors regarding the imposition of sentence, the District Court judge at first instance concluded: "I would have to say that this offence, even though isolated and a one-off offence, would have to fall within the middle of the range of objective seriousness, having regard to what was done." Simpson J, in referring to that finding, said that the significance of such a finding would become apparent later in her judgment. After referring to the arguments of Mr RA Hulme SC, as his Honour then was, on behalf of the respondent in which attention was drawn to the observations of the High Court in Ibbs v R (1987) 163 CLR 447 and subsequently to the decision of Wood CJ at CL in R v Davis [1999] NSWCCA 15, Simpson J acknowledged that penile/vaginal intercourse may have amounted to a more serious offence. Wood CJ at CL had referred to the fact in his Honour's view that penile/vaginal penetration of a child is significantly more serious than many of the other forms of conduct encompassed within s 66A.
Of course, in rejecting the proposition that there was necessarily a hierarchy of offending, Simpson J pointed out that other appropriate areas of enquiry included how the offences took place, over what period of time, with what degree of force or coercion, and the use of threats or pressure to ensure compliance with the demands made and subsequent silence, as well as any immediately apparent effect on the victim. In the case then before the court, it appeared to her Honour that there was little if any force or coercion and it appeared that the respondent had relied upon his natural authority as a person in charge of the complainant and that her compliance had resulted on her acceptance of that authority.
In all of the circumstances, Simpson J, with whom Adams and Howie JJ agreed, came to the conclusion that the offence committed should properly be seen as falling somewhere below the mid-range for an offence against s 66A. Her Honour said at [27]: "Of most significance in this conclusion is that this was an isolated incident."
Whilst recognising the various competing considerations, namely that it was an isolated instance and of comparatively short duration on the one hand, and on the other it represented a gross abuse of trust by the child's mother upon her 5 year-old son, and taking cognisance of the fact that the broad concept of low range and mid-range are not defined with arithmetical certainty, and may well overlap to some degree, I would find that the offending in this respect falls either to the low end of the mid-range of objective seriousness or perchance to the high end of the lower range of offending.

[30]

COMPARATIVE CASES

Whilst recognising that often so-called comparative cases turn on their own individual facts, I should indicate that I have looked at a number of other cases with respect to a general range for offending of a similar nature. I have also had regard to the JIRS statistics, notwithstanding their frequent description as being a "blunt instrument." In particular, I have also perused a number of decisions from the District Court with regard to cases falling within the categories that I have identified earlier in these Remarks.
I should note that I have had access to the unreported decision of R v O'Connell, a decision of her Honour Judge Beckett of the District Court on 3 July 2020. The offender in that matter had committed assaults against younger female relatives who were respectively under 16 and under 10 years of age. She had filmed and distributed recordings of what constituted child abuse material. Judge Beckett had recourse to various identified summaries of cases set out in the Public Defenders offence tables which had provided some level of guidance as to range. I have also perused those cases.
I have also had regard to the approach taken to a broadly similar course of offending by Judge Mahony SC in the matter of R v JS [2018] NSWDC 342. The offending in that case included the use of a child under 14 to make child abuse material in which the mother of the victim had taken sexually provocative photographs of her own child before sending the images to a person with whom she had developed a virtual relationship on the internet. She was also charged with disseminating child abuse material as a consequence. One further substantive count related to sexual intercourse with her own child who was under the age of 10 years.
In addition to other similarities to the present matter, the offender in JS had been attempting to please the recipient of the photos and, in effect, to ingratiate herself with him. JS may, however, be differentiated in one respect namely that the sentencing judge found that the digital penetration of the offender's own daughter's vagina for the purpose of photographing it so as to make child abuse material was not done for the offender's own sexual gratification but was done for her own benefit to the extent that she perceived it would benefit her by attracting her co-offender's affection and attention to her.
I agree with Mahony SC DCJ's description that "it constituted a gross breach of trust and a breach of her authority as the mother of her daughter, and constituted predatory and depraved behaviour."

[31]

DETERMINATION

In all of the circumstances, I find that the section 5 threshold has been crossed and that no other punishment than a full-time custodial sentence should be imposed.
I intend to sentence the offender by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. Before doing so, I am required to identify indicative sentences in respect of each of the offences and the indicative non-parole period in respect of those offences which carry standard non-parole periods. This is intended to permit transparency of the sentencing process.
The offender is entitled, by virtue of her early plea of guilty, to a 25% discount on sentence. Dealing with the offences in the categories that I have earlier set out, and utilising the maximum penalty and standard non-parole periods where applicable as guideposts, the indicative sentences will be as follows. In each case the 25% discount has been taken into account. As would be apparent from the indicative sentences I make a finding of special circumstances based on the subjective features I have referred to and propose to vary the statutory ratio.
With respect to the first substantive Count (Sequence 1), namely grooming a child under 14 relating to showing the video to Aubrey, 2 years with an indicative non-parole period of 16 months.
With respect to substantive count 2 (Sequence 4), taking into account the Form 1 offence, 2 years 3 months with a non-parole period of 18 months.
With respect to substantive count 8 (Sequence 13), 2 years with a non-parole period of 16 months.
With respect to substantive count 9 (Sequence 49), 2 years with a non-parole period of 16 months.
Moving to the use of a child under 14 years for the production of child abuse material, Substantive Count 4 (Sequence 36) relating to the taking of photographs of Kelly, taking into account the 2 matters on the Form 1 document, 3 years with a non-parole period of 2 years.
With respect to substantive Count 5 (Sequence 37) relating to photographs taken of Aubrey on the same occasion, taking into account the four matters on the Form 1 document, 3 years with a non-parole period of 2 years.
With respect to substantive Count 10 (Sequence 42) taking photos of Aubrey after the provision of alcohol, 2 years 3 months with a non-parole period of 18 months.
With respect to substantive Count 11 (Sequence 43) relating to the taking of photos and videos of Henry while he was sleeping, taking into account the matter on the Form 1, 2 years 3 months with a non-parole period of 18 months.
With respect to the dissemination of child abuse material, substantive count 3 (Sequence 35), 18 months imprisonment.
With respect to substantive count 6 (Sequence 40), 18 months.
With respect to substantive count 7 (Sequence 41), taking into account the two offences on the Form 1, 2 years.
With respect to substantive count 12 (Sequence 45), 15 months.
With respect to substantive count 14 (Sequence 48), 18 months.
With respect to substantive count 13 (Sequence 19), taking into account the two matters on the Form 1, 6 years with a non-parole period of 4 years.
In determining an aggregate sentence, the principle of totality applies which requires some accumulation of the various sentences. There must also be some degree of concurrence so that an aggregate sentence should be just and appropriate to the totality of the offending criminal conduct. I remind myself of the description of the principle of totality by the then Chief Justice Sir Lawrence Street in R v Holder & Johnston (1983) 3 NSWLR 245 where his Honour said, at 260: "Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary either by telescoping or otherwise in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
The offending in the present matter took place over a comparatively short period of time and the majority of it in sequential days leading up to Christmas 2019. It involved the sexual activity which has been described with each of her three older children who were respectively 8, 5 and 4 years of age at the time. The conduct culminated in the most serious offending against her young son. It is important that she be sentenced in respect of what she in fact did and that the expressions of intention regarding purported future actions not be permitted to influence a proper determination of the offending with which she is charged.
The aggregate sentence will be 10 years with a non-parole period of 6 years. The sentence and non-parole period will commence on the date the offender went into custody, namely 7 January 2020. The non-parole period will accordingly expire on 6 January 2026 and the head sentence will expire on 6 January 2030.

[32]

APPENDIX - TABLE OF OFFENCES AND VICTIM Off # Seq Charge under Crimes Act 1900 Victim

1    S 66EB(3) - Groom child under 14 for unlawful sexual activity                  Aubrey Pana

4    S 66EB(3) - Groom child under 14 for unlawful sexual activity                  Aubrey Pana

F1(a) 14 S 66EB(3) - Groom child under 14 for unlawful sexual activity Aubrey Pana 3. 35 S 91H(2) - Disseminate child abuse material Aubrey Pana & Kelly Pana 4. 36 S 91G(1)(a) - Use child under 14 years for production of child abuse material Kelly Pana F1(b) 34 S 91G(1)(a) - Use child under 14 years for production of child abuse material Kelly Pana F1(b) 39 S 66DA(a) - Sexual touching of a child under 10 Kelly Pana 5. 37 S 91G(1)(a) - Use child under 14 years for production of child abuse material Aubrey Pana F1(c) 29 S 91G(1)(a) - Use child under 14 years for production of child abuse material Aubrey Pana F1(c) 31 S 91G(1)(a) - Use child under 14 years for production of child abuse material Aubrey Pana F1(c) 33 S 91G(1)(a) - Use child under 14 years for production of child abuse material Aubrey Pana F1(c) 38 S 66DA(a) - Sexual touching of a child under 10 Aubrey Pana 6. 40 S 91H(2) - Disseminate child abuse material Kelly Pana 7. 41 S 91H(2) - Disseminate child abuse material Aubrey Pana F1(d) 30 S 91H(2) - Disseminate child abuse material Aubrey Pana F1(d) 32 S 91H(2) - Disseminate child abuse material Aubrey Pana 8. 13 S 66EB(3) - Groom child under 14 for unlawful sexual activity Aubrey Pana 9. 49 S 66EB(3) - Groom child under 14 for unlawful sexual activity Aubrey Pana 10. 42 S 91G(1)(a) - Use child under 14 years for production of child abuse material Aubrey Pana 11. 43 S 91G(1)(a) - Use child under 14 years for production of child abuse material Henry Pana F1(e) 44 S 66DA(a) - Sexual touching of a child under 10 Henry Pana 12. 45 S 91H(2) - Disseminate child abuse material Henry Pana 13. 19 S 66A(1) - Sexual intercourse with a child under 10 Henry Pana F1(f) 46 S 66DA(b) Inciting a child under 10 to sexually touch Henry Pana F1(f) 47 S 66DA(a) Sexual touching of a child under 10 Henry Pana 14. 48 S 91H(2) - Possess child abuse material -

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