R v Duncan

District Court of NSW|2022-10-24

Judgment

HER HONOUR: The offender, Neil Duncan, is before the Court for sentence on eight counts of sexually touching three children, aged between 10 and 16. The offences are all contrary to s 66DB(a) of the Crimes Act 1900 (NSW) and as such each carries a maximum penalty of 10 years imprisonment.
The matter has come for sentence following a jury trial in Queanbeyan in May, June 2022. The offender was arraigned before a jury on an indictment containing 14 counts, 12 being charges of sexually touching five different children aged between 10 and 16. Counts 11 and 15 were alternative counts of assault. The trial proceeded throughout May. The jury retired on verdict on 19 May.
After the evidence, but before addresses and summing-up, the Crown withdrew the two alternative counts 11 and 15, and leave was granted to file a new indictment dated 11 May, containing only the 12 counts of sexually touching the five separate children aged between 10 and 16.
There had been interruptions right throughout the trial up to that point for a number of reasons, including malfunctioning court recording equipment and legal representatives contracting COVID-19. After the jury retired on verdict there were further interruptions as a result of individual jurors' illness, including some contracting COVID-19.

Sentencing Principles Relevant for Child Sexual Assault Offences

All of these offences fall into the general description of child sexual assault offences. There are some general principles relevant for sentencing all child sexual assault offences: 1. All child sexual assault offences are serious and are likely to give rise to psychological damage, including in some cases causing profound and deleterious effects on victims for many years, often for their whole lives. 2. The community has become more aware of the serious impact of sexual abuse on children and as a result the maximum penalties for such offences have generally been increased by the legislature. The maximum penalty for all of the offences before me remains the same as for the previous offence of indecently assaulting a child between 10 and 16, but the legislature has acknowledged this increasing awareness by placing a limitation that any prison term ordered for offences of this type may not be served in the community and must be served by way of fulltime imprisonment. 3. The Court must have regard to s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), which I do take into account, specifically in relation to s 25AA(3) which provides the following:

"When sentencing an offender for child sexual assault offence the Court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing which may include recent psychological research or the common experience of the Courts."

General Sentencing Principles

There are also general sentencing principles which must be taken into account by the Court. Sentences for offences contrary to all provisions of the Crimes Act 1900 are also governed by the general provisions to be found in the Crimes (Sentencing Procedure) Act 1999. In particular, the Court must sentence according to the purposes of sentencing provided for in s 3A of that Act as follows:

"Section 3A: The purposes for which a Court may impose a sentence on an offender are as follows: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; 6. to denounce the conduct of the offender; and 7. to recognise the harm done to the victim of the crime and the community."

For offences of child sexual assault, s 3A(b) is of particular significance, namely the need for general deterrence, and sentences for these offences must send a general message to the community, in an attempt to deters others from committing similar offences, that offences of this type will almost always lead to terms of full-time imprisonment.
In addition, all sentencing is governed by s 5 of the Crimes (Sentencing Procedure) Act 1999 which is as follows:

"Section 5(1): A court must not sentence an offender to imprisonment unless it is satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate." 3. This is commonly referred to as the s 5 threshold. Whether or not any individual sentence crosses that threshold for imprisonment involves a consideration of a number of factors, not just the nature of the offence and includes the objective criminality of any particular offence, whether or not there are any mitigating or aggravating factors pursuant to s 21A of the Act, the maximum penalty set by the legislature for s 3A purposes of sentencing and the subjective circumstances of the offender, plus other relevant matters particular to the sentence being considered. 4. The objective criminality of any particular offence is largely informed by the facts. The facts relevant to the sentences here are before the Court by way of a document entitled "Statement of Facts", distilled by the Crown from evidence given by each of the victims at trial and from some other evidence. Except for one area flagged on behalf of the accused, there is no dispute that, consistent with the jury's verdicts I would find the facts as contained in that statement.

The Facts

By way of general background, I accept that the offender, who is 67 now, was 64 at the time of the offending and lived with his wife and two daughters then aged 12 and 10 in the Bega area. He and his whole family had been significantly involved in the local Pony Club and Pony Club events generally. Horse riding both generally and via Pony Club events was the sport or hobby of choice for each of his daughters who excelled in that sport. These daughters had a number of similar aged friends with whom they shared that hobby and both the accused, and his wife, were heavily involved in this sport and Pony Club events and had been from a period not long after they were born. He had a number of horses on his property which he used for Pony Club events and other riding.
I will now turn to the specific facts for each of the charges.
Counts 5 to 8 inclusive are four counts of sexually touching OO. They occurred on two separate occasions, all whilst on camping trips in the Kosciuszko National Park when OO was 13. Count 5 occurred on 10 February 2019. Counts 6, 7 and 8 all occurred on 7 or 8 June 2019. On both occasions OO had been invited by the offender's younger daughter to go camping and horse riding with her family in the National Park. The girls were friends. Arrangements for the overnight trip were made between OO's mother and the offender's wife. On 10 February 2019 OO went with the offender and his younger daughter to camp at the Mount Pincham camping area in the National Park. I accept from evidence generally that the offender and members of his family and with his friends frequently visited that campsite and camped there on weekends to ride in the National Park. On this occasion, on 10 February, there were only three of them there, the offender, his younger daughter and OO. At the campsite the offender set up three swags and arranged OO's swag so it was next to his with his daughter on the other side, all the swags were close together. During the evening when both OO and the offender were in their swags, the offender placed his hand into the victim's swag and put his hand up under shirt, lifted her bra and touched her breasts on the skin for approximately five minutes. OO told the offender that she felt uncomfortable and to this the offender said, "I don't bite." OO then went to the bathroom and when she returned to her swag she zipped it all the way up to the top and went to sleep. The facts do not disclose any further contact between the offender and OO either that night or on that camping trip. They would appear to be the relevant facts of count 5
Counts 6, 7 and 8 all occurred during a two-night horse riding camp trip between 7 and 8 June 2019. OO again went on this trip with the offender and his younger daughter. As before, arrangements for the trip were made between the two girls and their mothers. An adult male friend of the offender was also present on this camping trip. This person gave evidence at trial, both in relation to his presence with the offender at camping trips generally, and also character evidence.
I accept that the offender set up the swags as previously with OO in the middle. As was usually the case, the offender, his adult male friend and both girls sat around the campfire that night having dinner and talking for a while after it became dark. OO gave evidence that at one stage during the evening the offender said to her "what happens in the bush stays in the bush" and the offender also told OO "you don't need to tell your mum". That fact is not one of the facts put in dispute but there was dispute in the trial as to the meaning of this when said, and in particular evidence given by the offender's friend who was present. that this was a term frequently used by many people, including adults, in relation to going camping in the bush, and that at least from his perspective it did not have a sinister meaning. So far as I can recall the evidence, OO was not asked what she thought that meant, nor can I find in the Crown submission a suggestion that this comment should be viewed as a factor aggravating the relevant offence.
OO gave evidence that on the first night, 7 June, the offender offered her alcohol which she declined. This was denied by the offender in his evidence. I will deal with this issue, which is the only factual issue requiring determination, in due course.
I accept everyone eventually went to bed, including the offender and both girls, into these swags that had been set up. The other adult male was also sleeping somewhere in the immediate vicinity but not under the same tarp. OO gave evidence, which the jury clearly accepted, that after everyone had gone to bed the offender stuck his hand into her swag, put it under her shirt, lifted her bra and touched her breasts which made her feel uncomfortable. This lasted around five minutes. She told the offender she was uncomfortable. He apparently stopped and she zipped up the swag. They are the facts for count 6.
They went horse-riding the following day and that night they were again around the campfire for dinner. OO gave evidence that the offender again offered her alcohol and in her words that "he pushed it". She said that she drank about five or six vodka cruisers, which were supplied to her by the offender from an esky, and that she was feeling wobbly and was intoxicated. She said she started drinking at about 7pm and that everyone went to bed at about 10pm.
The Crown submits that there ought be a finding of fact that on both nights, the 7th and the 8th, the offender offered OO alcohol and that on the evening of the 8th he actually supplied her with those five or six drinks as a result of which she became intoxicated. In the circumstances it seems to me that that if that were the case, her level of intoxication, as described by her, would have been noticeable.
The Crown seeks to rely on this as an aggravating factor when sentencing for counts 6, 7 and 8. If established it would indeed be a factor aggravating the objective criminality of his offending and as such needs to be proved beyond reasonable doubt. It is not, however, integral to the jury's verdict on these three counts and requires a factual finding by me.
The offender in his evidence denied offering alcohol to OO on either night. His evidence was that there was at least one vodka cruiser in the esky, that he did not offer any to OO on the first night, and that on the second night OO herself took it out and asked if she could have it and he agreed. His evidence was that she drank only one. He also gave evidence that there were never as many as five or six vodka cruiser drinks in the esky at any one time. In relation to this topic also, OO gave evidence that she told her mother, in the context of making some complaint about the events, that the offender had offered her vodka cruisers, but just that he had offered them to her. She did not, in that conversation, tell her mother that she had drunk any, nor that she had become intoxicated.
There was other evidence in relation to this from the offender's male friend, who I accept was present at that camp. He did not purport to have a specific memory of this particular camping trip and had been on many with the offender at which one or other of his daughters was present and also at which some of the children's friends were present. He specifically remembers the first name of OO, as being a friend of one of the children, who was present on at least one trip which he also attended.
There would not appear to have been any dispute at trial that there was indeed another male present, namely, this man who gave evidence on this trip in June 2019. His evidence was that, whilst there was alcohol consumed on these camps, that was always done around the campfire when everyone was in close proximity to each other, that it was the adults who drank alcohol on these camping trips, but that he had never seen any of the young people present on these camping trips drinking alcohol and he had never seen any of the young people intoxicated. The evidence, as I understand it, was clear, that he was present on this camping trip of 7 and 8 June 2019 and I accept that to be the case. He was not cross-examined by the Crown in relation to any of his evidence.
OO was 13 at the time. Her evidence was that she was wobbly after drinking five or six vodka cruisers which, if it had occurred, would have been obvious to those present, especially adults.
Taking all of this evidence into account, even allowing for the fact that the jury accepted OO as a reliable witness in relation to the essential elements of the offence but taking into account what she said to her mother and the lack of any evidence from those who were present at the time making an observation of her being intoxicated, I am not satisfied that this asserted aggravating factor has been proved beyond reasonable doubt.
Having dealt with the only issue in dispute on the facts, I now return to the statement of facts from which I accept that at about 10pm that night on 8 June, everyone went to bed in the swags as previously. OO gave evidence, which was accepted by the jury, that the offender reached with his hand into her swag and placed his hand under her bra and touched her breasts. That is count 7. He then moved his hand under her underpants and touched the outside of her genital area and moved his fingers around. Her evidence was that he tried to pull her pants down, but she pulled them up. She said she was uncomfortable and started crying and said, "Please stop, I don't like this." The offender said, "I don't bite" and apparently stopped. OO's evidence was that she got out of the swag, went to the bathroom again and then got back into a swag with the offender's daughter and slept there with her for the rest of the night. They would appear to be the relevant facts for count 8. OO estimates that this latter offence lasted for about three minutes. Those are then the relevant facts for counts 5 to 8 inclusive.
Counts 9 and 10 both occurred on 21 March 2019 at the offender's home in the Bega area and involved the victim HU, who was 10 at the time. She was a school friend of the offender's younger daughter and had been at their house the previous night at a sleepover. The evidence was that this had been arranged between the two girls with the approval of their mothers.
On the morning of 21 March, HU and the offender's daughter fed some horses on the property and soon thereafter the daughter's grandmother arrived to drive the girls to school. The offender asked both of the girls for a hug before they left. His daughter hugged him and walked to the car. HU walked towards the offender and was facing away from him when he hugged her from behind. Whilst hugging HU, the offender placed his left hand near her hip over her clothing and, as he lowered his right arm from behind across the front of her body, he swiped her breasts on top of her shirt and then moved his arm into what she described as a squeezing hug, which lasted for about two seconds. They would appear to be the relevant facts when sentencing for count 9.
Both girls went to school and in the afternoon HU and the offender's daughter came back to the house. They were all riding a quad bike in the yard. The offender's daughter was driving, and HU and the offender were sitting behind her side by side. The offender put his arm around HU and put his hand up her shirt on her skin on the outside of her waist. HU told the offender to stop touching her two or three times, to which he replied, "It'll be all right." He did not stop immediately but, as I understand the facts, stopped shortly afterwards. These would appear to be the facts relevant for count 10. The following day, HU told other children at school, some teachers and her mother at least something about these events.
I now turn to the relevant facts for counts 12 and 14. They are both offences involving the complainant SC and occurred on the same weekend, namely 9 and 9 November 2019 in the National Park at Ingebirah when SC was 12. She was also a friend of the offender's younger daughter and went on a camping trip to the Pinch River camping ground that weekend with the offender and his daughter. As I understand the evidence, SC and the offender's daughter were friends from the local pony club. Her parents were also long-term friends of the offender.
According to the facts, at one stage the offender called SC over to him and said that whilst she was in the bush she could do whatever she wanted, such as drinking, smoking and swearing, as long as she did not tell her parents. SC and the offender's daughter started to set up their swags side by side, with his daughter putting her swag in the middle. The offender told her and SC to swap, which they did, so that SC's swag was in the middle. Everyone went to bed in their swags that evening. SC got into her swag and zipped it all the way up.
At some time after 8pm the offender, who was apparently in his swag, reached into SC's swag and undid it half-way down. He put his hand under her shirt and onto her stomach. The offender then moved his hands so that his fingers up to his knuckles were touching her skin under her sports bra. This lasted for about 20 seconds before the victim rolled onto her side away from the offender. This was not the subject of any charge before the jury, but apparently relied on as context. The offender then started to touch SC's genital area over the top of her jeans in a rubbing up and down circular motion. SC could not recall how long this occurred, but I accept it was for a relatively short period of time. After this stopped, SC attempted to sleep, but with difficulty. These are the facts relevant for count 12.
The following day SC went up the hill to use the bathrooms and on the way back the offender called her over and said he hoped she was mature enough to accept his apology and to keep in the incident between them. In his evidence he said what was he was referring to was what he described as an accidental touching of her breasts the previous night, when he claimed to have reached out to tell her and his daughter to stop talking or to stop using their phones, or for some reason to lie down and go to sleep. He gave a similar explanation to SC's father or parents much later, on 9 November 2020, during the course of a pretext call. Clearly the jury did not accept his evidence that what occurred on the night of the 8th was an accidental touching and also clearly accepted SC's evidence that the offender had rubbed her genital area on the outside of her clothing, which was in fact the subject matter of count 12.
On 9 November the offender and both girls went riding for a while, but then it started to rain so they went on a drive. At one point the offender's daughter got out to open a gate, and SC gave evidence that when her friend was out of the car the offender turned around to where she was sitting in the back of the car and rubbed her leg. The offender denied that and said he was just grabbing at some bags which were falling off the back of the seat because the terrain was rough. This in my view, whichever way it might be determined, and I have not been invited to make a factual finding in relation to this issue, is not an aggravating factor but rather a piece of contextual evidence which at best is further evidence of the offender's sexual interest in SC. This is inherent in the jury's conviction of him for both of the offences involving that victim. I am satisfied on balance that this event probably occurred, namely as in the evidence given by SC.
At some stage it stopped raining so the offender, his daughter and SC decided to go back to the campsite. Once back at the site the two girls took the horses for another ride. When they returned a number of other people had arrived at the campsite and at some stage both girls went for another ride with a boy who had arrived with other guests.
SC gave evidence that the previous night the offender had told her that he would give her a pink drink, but on the 9th she went for a walk with him along the river and he told her that he could not do that because there were other people present. Without being specific it seems that the Crown wants to rely on this as an aggravating factor, there being some inference that the offender was either going to supply her with alcohol or something along those lines.
I do not accept that the evidence is capable of establishing that, even if that is what is sought. In any event it seems to me that very little, if anything, can be made of this piece of evidence. There is no evidence of what the offender was referring to, except the evidence he gave that he was talking about a raspberry drink that he took because it was his daughter's favourite drink. There is no evidence that he ever in fact supplied anything untoward to SC. If it is meant to be viewed as an aggravating factor, namely that he supplied alcohol, it is not made out beyond reasonable doubt, and if it is not meant to be viewed as an aggravating factor and is to be accepted on the balance of probabilities, it is hard to know what I am to make of it. It is not referred to in the Crown's submissions.
That night the offender, his daughter, SC, a younger boy and an older male ate dinner around the campfire and at about 8pm the two girls went to bed in their swags and were playing on their phones. The offender went to bed around 9.30pm. When the offender got into his own swag he reached over and unzipped SC's swag halfway down. He then placed his hand inside her swag and rubbed what is described as the front private area, which I take to be the genital area, over the top of her jeans in an up and down circular motion for about 10 minutes. SC kept rolling away in an attempt to get away from the offender, but he continued to touch her in that way for about 10 minutes.
The next morning, the offender and both girls went horse riding again, before returning to pack up the campsite. He then drove SC to Jindabyne, where she was collected by her mother. There was evidence following that of complaint made to her mother not long after she arrived home, in circumstances where she exhibited considerable distress. They would appear to be the relevant facts for count 13.

Objective Seriousness of Offences

I now turn to an assessment of the objective seriousness of each of these offences. It is not strictly necessary to make a finding referred to as objective seriousness or objective criminality, or to place any of these offences either at, below or above the midrange in terms of objective seriousness. Such a finding is necessary in cases where there is a standard non‑parole period. However, it has always been part of the Court's sentencing role to determine where any particular offence sits on a continuum of offences capable of being charged under a relevant section.
There are a number of factors which inform an assessment of objective criminality for each of these offences: 1. Especially for the offences in the national park, the victims were in places of isolation, away from home and in circumstances where there was no phone reception, which increased their vulnerability. 2. There is however no evidence of planning or premeditation on the part of the offender to commit any of these offences, nor any evidence that he engineered these two particular victims, OO and SC, to be present at the National Park in order to commit them. I accept from the evidence, as I have said already, that he regularly went on these camping trips with his daughters and some of their friends for the purpose of riding and camping, and that there was nothing unusual about doing so. There is no evidence that he went on these camping trips with either of these two victims in order to commit the offences. The camping trips followed arrangements made between his daughter and both of the victims, and specific arrangements were made between the mothers of the girls. Equally, the presence of HU at his home on 21 March was arranged in the same way, namely between the two girls and with the permission of their mothers. His offending on my finding, in those circumstances, was opportunistic in relation to all three victims and none of them was premeditated. 3. He was however, and especially so for the offences involving OO and SC, clearly 'in loco parentis' for these girls and thus he abused his position of trust. In relation to HU he was in a similar position, but very briefly and not to the same extent. Nonetheless, as is the case in all child sexual assault offences as an adult, he abused the trust that all children should have in all adults not to use them for sexual purposes and abused the position of trust he had as the responsible adult when they were present with him, either camping or visiting his home. 4. The actual sexual touching involving HU was of a relatively minor nature, particularly so count 9, which involved his swiping his arm across her chest or breasts, before giving her a squeezy hug for about two seconds, and for count 10, placing his hand under her shirt briefly and touching her skin on her waist. They were for very brief periods and in the circumstances amount to relatively minor sexual touching. 5. The touching of OO on her skin under her bra is of greater objective seriousness and certainly touching her genital region on her skin with his hand, namely the subject matter of count 8, is a more serious incident of sexual touching. 6. Touching SC in her genital region, namely the facts relevant for counts 12 and 13 is serious, but somewhat less so objectively than for count 8, because this occurred outside her clothing. 7. OO and SC were aged 13 and 12 respectively, thus around the middle of the age range relevant for this charge, which is a factor in assessing objective seriousness. HU was at the bottom of that age range, being only 10, but I accept that the extent to which her young age might increase an assessment of objective criminality for the offences involving her is substantially outweighed by the relatively minor nature of the sexual touching. 8. These cannot be treated as isolated offences but nor is that argued on behalf of the offender. He committed offences of a similar type against three girls over a period between February and November 2019.
As I understand the Crown's written submissions, they appear to argue at paragraph 18 that in some way Court of Criminal Appeal decision of Ragg v R [2022] NSWCCA 150 ('Ragg') operates in a way which would increase my assessment of the objective criminality of one or other or all of the offences. I do not accept that that argument is made out in this case. I accept that whilst Ragg is authority for the proposition that in an appropriate case the facts and circumstances of a prior or subsequent offence can be relevant to an assessment of the objective seriousness of a subsequent or prior offence, that whether or not that assessment is made depends on the circumstances of the particular offence.
One clear part of the decision of the Court of Criminal Appeal in Ragg, which was not referred to by the Crown in its written submissions, is a reference at paragraph 38 by Justice Beech-Jones, CJ at CL when referring to an earlier decision, RO v R [2019] NSWCCA 183. The following appears at the beginning of paragraph 38:

"Hence RO is authority for the proposition that it is erroneous to use an offence committed on another and completely different occasion as part of the assessment of the objective seriousness of the subject offence". 3. Ragg is also authority for the proposition that there is no blanket position that facts and circumstances of a related offence can never be relevant to the assessment of objective seriousness of an offence under consideration. However, in my view, that case refers to the extent to which a subsequent or prior offence committed on the same victim may be relevant either because the commission of a prior offence as known to the offender rendered the victim increasingly vulnerable to subsequent offences or alternatively, the commission of a later offence on the same victim may indicate the real intention to commit prior offences. 4. It seems to me that there is no basis on which either of those propositions is made out when considering any of the offences against the victims here, and especially so where there can be no suggestion that the offender engineered the attendance of any of them either at the camp or at his home. The facts in Ragg were very different and considerably more serious. 5. Here the decision by OO to return to another camping weekend in June 2019, and the decision by HU to go back to the house in the afternoon, did not come about because of any increased sense of vulnerability and there is no evidence from which I could find that any such vulnerability, even if it did exist, was taken advantage of by the offender to commit any of the offences. As I have already found, he played no part in the fact that any of the victims was present on any of the occasions the subject matter of the charges. 6. None of the facts of any of the prior or subsequent offences relevant for any individual victim here in my view renders the objective seriousness of any one of the offences more serious. Each of them is to be assessed according to the relevant facts, however in this case there can be no doubt but that the offender's overall offending cannot be regarded as isolated nor that any offence can properly be regarded as an aberration. That is not the case, but for that matter, nor is that argued on behalf of the offender. 7. Taking into account those factors informing considerations of objective seriousness I have concluded that for counts 9 and 10 involving the victim HU, the objective seriousness is towards the bottom of the range in terms of objective criminality. For all of the other offences, with the exception of count 8, the objective seriousness in my view is a little below the middle of the range and for count 8 the objective seriousness is at about the middle of the range. 8. I acknowledge that those findings do not accord with the submissions made on behalf of the Crown. In particular it seems to me that the Crown's submission that I would find the offences against HU as falling within the midrange of objective seriousness quite unhelpful, apparently ignoring the very minor nature of the touching that is the subject matter of those two offences.

Aggravating and Mitigating Factors

The Court then needs to turn to any aggravating and mitigating factors relevant in s 21A of the Crimes (Sentencing Procedure) Act 1999. There are no aggravating factors referred to in that section relevant here which I have not already referred to and taken into account when assessing objective criminality.
The offender pleaded not guilty to these offences and was found guilty after trial by jury. He therefore does not have any plea of guilty as a mitigating factor, nor any discount for the utilitarian value of any plea. The fact that he did not plead guilty however is not an aggravating factor and cannot increase the appropriate sentence.
Section 23A(3) of the Crimes (Sentencing Procedure) Act 1999 sets out a range of mitigating factors which the Court can take into account when sentencing, most of which are not relevant here except in relation to the offender's lack of previous criminal record and previous good character and issues in relation to prospects of rehabilitation and likelihood of reoffending. I will deal with the latter two matters in due course when assessing his subjective case.
I will deal now with the other available mitigating factors, namely his lack of criminal record and previous good character. When the offender was arrested for these offences in November 2020 there was a search undertaken of his rural premises and he was charged with some unrelated firearms offences which were later dealt with by way of conviction and relatively modest fines in the Local Court in May 2021. These firearms offences have no connection with the offences before me and constitute the only convictions on his record as at today, the day of sentencing.
At the time that he committed these offences in 2019 he was a person with no prior record at all and was aged 64. I accept in those circumstances that he is a person who does not have a significant record of previous convictions and no previous convictions of any relevant type for the offences for which I sentence him. He is entitled to have that taken into account as a mitigating factor on sentence pursuant to s 21A(3)(e) unless the provisions of s 21A(5A) apply.
In addition, it is argued on his behalf that I would take into account his previous good character as a mitigating factor. There was evidence at trial and tendered on sentence in relation to his good character, mainly in the form of character references either given orally or in writing to the Court. I accept that each of them was given genuinely by this witness, and I accept that evidence at least in the terms that it was given, namely that in general terms at least he was a considerate and reliable person who had made many contributions to the local community. All of these character witnesses are members of the community who, as I have said, gave their opinions in good faith and are entitled to have their opinions and experience of the offender respected. Those who have teenage daughters hold no fears of his having ongoing contact with them through their friendships with his daughters.
To that extent, it is argued, I would accept him as a person of previous good character which would operate by way of some reduction of penalty pursuant to 21A(3)(f).
The Crown seeks a finding pursuant to s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 which would disentitle him to this finding, if the Court is satisfied that this good character or lack of previous convictions was of assistance to his committing the offences. I do not make that finding in this case because of the lack of evidence to enable such a finding and the availability of positive evidence to the contrary. The Crown submission that the offender's good character and position as a responsible member of the community was of assistance to him in befriending the victim's families and in the commission of these offences lacks an evidentiary basis.
As I understand the evidence, SC's family had been family friends of the offender and his family for many years. There is no evidence as to how and in what circumstances the offender came to know the families of OO and HU, and to the extent that there is any evidence at all it would appear that the fact that any of these victims was present in company with the offender came about as a result of their friendship with his younger daughter and the connection between the mothers of those children. There is no evidence from which I could make the findings sought.
As I referred to above the offender is entitled to have his lack of significant convictions taken into account as a mitigating factor and I will do so when ultimately determining the appropriate sentence. The impact of his prior good character in this case however does not to any real extent operate as a mitigating factor for these sentences in circumstances where he committed these offences on four separate occasions during 2019 against three separate victims.

Impact on Victims

OO and HU have written victim impact statements which are tendered and which I have received, read and considered. Whilst there is no victim impact statement from CS, nonetheless she gave evidence in the trial, including evidence in chief and the Court has a memory of her demeanour. There was also evidence from her mother in the trial to whom she made a complaint shortly after she returned from the camp, relevant to her demeanour at the time she made that complaint and of course the statements made by them to the offender during the course of the pretext call. I accept that each of the victims has been adversely affected as a result of these offences.
I accept that each of them, either from the content of their victim impact statement or from other evidence which came before the Court from SC, felt a sense of betrayal and have a reduced sense of safety in the community. Both OO and HU have expressed a belief that they could have done something to prevent the offences, thus internalising some blame. They must be encouraged not to engage in that thinking. Nothing here is their fault. The only fault here lies at the feet of the offender. There have been some impacts on their ability to relate with their peer group at school and generally I accept that these psychological sequelae are likely to be ongoing. There is nothing in the evidence however that would elevate the impact on any of them to an aggravating factor.
However, the Court acknowledges the ongoing impact on them of these offences. It is to be hoped that in the very near future, perhaps by the final disposition of these proceedings, each of them will be able to regard themselves as survivors of child sexual abuse and stop identifying themselves as victims. It is to be hoped that the State is and will continue to provide them with financial assistance by way of professional help to help them to overcome the impact of these offences in addition to what must have been the large outlay already in the prosecution of these matters and other ancillary litigation.

Offender's Subjective Case

I now turn to the subjective case mounted by the offender here. He is now 67. Whilst these offences occurred in the Bega area he did not always live there and has not lived in the Bega area since late 2020. He has had limited formal education, having left school at 14. He worked as a milk delivery boy from the age of 9 until he left school and home at 14 and moved to Shepparton in Victoria to work on a farm. He then went to work in Queanbeyan, undertook an apprenticeship in cabinet making and became the workshop manager while still in his third year of apprenticeship.
He started his own joinery business in Queanbeyan in 1980. He often went to the Kosciusko National Park during this time. He married his first wife in 1978. who has provided a character reference for him on this sentence and they lived in Queanbeyan and had two children who are now adults. They bought a farm at Delegate in 1984 and started farming sheep there. He went back to horse riding at this time and started playing polocrosse at which he excelled.
Around this time, he became involved with catching and processing feral goats in the Bourke area. He worked with a bank to re-open a local abattoir in Bourke which had fallen into disrepair and he then used that to process feral goats. He then was involved in opening a goat abattoir in Charleville in Queensland.
He opened his business, Western Exporters, in Charleville in 1996 and moved there with his family. He and his first wife separated and she moved back to New South Wales when they sold their farm at Delegate. Western Exporters was successful and became the largest employer in Charleville and the largest goat meat exporter in the world. He owned and managed that abattoir for 16 years. He was a supportive sponsor of sporting and community events in the area, including making significant financial donations to the local fishing club to restock local rivers and for uniforms and equipment to the local football club and local children's swimming club. He continued to play polocrosse while in Charleville at a high level including representing Australia in Canada and the US in 2005 in the President's Eight Australian Polocrosse Team. It was at this time that he met his second wife, they married in 2006 and had two children together, namely the daughters to whom reference has already been made who were living with him and his wife in Bega at the time these offences were committed.
In 2008 he had a catastrophic injury to his hand which required him to retire from competitive polocrosse. His two daughters started pony club initially in Charleville very early in their lives and he and his second wife were both active and dedicated members of the pony club there and supported them.
Between 2006 and 2009 he planned and subdivided two housing estates on a tract of property in Charleville, and in 2012 he retired, sold the abattoir and moved to Bega with his family, and lived in the house they had built on land they had bought there previously. As I understand it, that was the house in which he was residing at the time the offences were committed. It was there that he then became involved with the New South Wales Pony Club and continued an active involvement there, including teaching his daughters to ride from the time they could walk, helping other riders learn about their horses and to succeed in pony club riding events.
He and his family had always returned about twice a year for trips to the Kosciusko National Park, even whilst living in Queensland, but after moving to Bega went more often, including with his daughters and their horses.
Also, whilst in Bega he bought and subdivided other property into a housing estate. As his daughters became older they competed at higher levels in pony club events, including attending State championships from 2018 to 2022. His daughters excelled and won many events at these championships, including as New South Wales representatives in national competitions. These events took the family travelling around New South Wales and Queensland very often. I accept that in 2020 the family made a decision to move to the Tamworth area, a more central location for horse events, and they bought a farm there in November 2020 and moved there in early 2021. This coincided with his arrest in November 2020 and some events shortly thereafter. The offender has not lived in the Bega area since early 2021.
The property which they bought in the Tamworth area and at which he and his family now reside is 300 acres, includes beef cattle, 22 horses, lucerne paddocks, hay and oats in crop, at least as at the date of his affidavit in July 2022.
I will soon outline what has occurred to the offender's family in the Tamworth area following his conviction for these offences and the publicity surrounding them. Before that however I outline issues in relation to the offender's physical health. He suffers from some serious medical conditions. He has sworn two affidavits tendered on this sentence and was not required for cross‑examination on either of them. There have also been tendered a number of medical reports in relation to his medical condition.
I accept that just before this trial commenced in May 2022 the offender started to suffer symptoms suggestive of abdominal abnormalities. He was advised to undergo blood tests but decided to wait until after the trial had completed. As already referred to, there were delays in the trial and during one of those delays the offender underwent these blood tests. One of those required further investigation, ultimately involving a prostate biopsy. He was advised on 5 July 2022 that he had prostate cancer for which he required a prostatectomy and that he had other symptoms suggestive of bowel cancer which required ongoing investigation. He then underwent a subsequent body scan and CT which indicated a suspicious node in his lungs. He has been advised to undertake three monthly CT scans to monitor growth and changes in that.
He had a total prostatectomy on 22 September 2022 and was an inpatient for two days and released to home care with further treatment on 23 September 2022. He then had adverse symptoms following this, requiring readmission to Tamworth Base Hospital on 9 October with an infection, including significant haematuria and pain and was an inpatient for a further two days for treatment. He had further adverse side effects of the prostatectomy and was readmitted on 15 October this year, again with gross haematuria and other side effects and was admitted again for three days. He was not able to travel because of the treatment for this condition for a week afterwards and thus his original sentence date of 24 October had to be postponed until today to enable him to travel.
I accept on the face of this medical evidence that the offender would appear to be still in the recovery phase from this prostate cancer surgery and that it is possible and likely that he will suffer similar symptoms whilst in custody, requiring urgent hospital treatment of the type not likely to be available in the prison hospital, but which is likely to require transfer to the Prince of Wales Hospital for emergency treatment. His conditions, if they occur, will at the very least cause significant pain, as has occurred on the last two emergency admissions, with the risks associated with long term kidney disease in the event that urinary retention does not receive urgent treatment and other possible side effects arising from infections. He also requires ongoing scans and tests to monitor for possible bowel cancer and the detected lung node.
The details of his medical condition have been provided to Justice Health, which has advised that once he goes into custody he will be reviewed regularly by medical and nursing staff, including a clinical nurse with expertise in cancer care, and I take note of that portion of the Justice Health report tendered by the Crown and dated 19 October 2022. Justice Health is confident of its ability to provide Mr Duncan with treatment for his health conditions.
It is likely, it seems to me, that his treatment will require expertise beyond that of a clinical nurse and should he suffer the same side effects in custody, as he has recently suffered in the community, he is likely to be transferred to Prince of Wales Hospital, provided there is a bed available. I accept that these opinions and expressions of confidence are genuinely offered by Justice Health, but do not accept the view in that report that "Services available to those in custody are commensurate with those available in the wider community". It is not the experience of this Court that this is the case, as it was not the finding of the Inspector of Custodial Services in the report entitled "Health Services in New South Wales Correctional Facilities" dated March 2021, tendered as exhibit 5 in this sentence by the offender.
Even taking into account the fact that this report relied on inspections only up until early 2018 and also taking into account the acknowledgment in that report that conditions had improved since the last of those inspections, nonetheless the report states that which would appear to be obvious, namely that the unique circumstances of providing treatment for an entire population in custody, with limited availability of hours each day for both prisoners and health staff to interact and frequent prison transfers, noted in the report as more significant in New South Wales than in other States, let alone the impact that COVID‑19 lockdowns have had on both the ability for prisoners to present for face‑to‑face medical care and the availability of Corrective Services and other staff to provide it, means that there continue to be delays in the provision of treatment in custody.
Whilst it may be the expressed position of Justice Health New South Wales that services available to those in the community are commensurate with those available in the wider community, that is not the experience of this Court, nor, according to the Inspector General's report, the experience of those within the system, both prisoners and staff who were interviewed for the purpose of that report.
Taken overall I accept that the offender's medical condition makes it likely that he will need some emergency treatment for the side effects of his cancer treatment and allied health conditions, and that in those circumstances his experience of prison is likely to be made more onerous, which is a relevant consideration in determining both the appropriate length of his prison term overall and the length of the non‑parole period.
The offender has been on bail for almost the whole time since he was arrested in November 2020. He was released on the day of his arrest. He spent one day in custody only in June 2022 in relation to an assertion of breach of bail which was not established. As a result, his sentence will be backdated to commence yesterday, 3 November 2022, to take that one day into account.

Prospects of Reoffending and Likelihood of Reoffending

It is necessary to consider the offender's prospects of rehabilitation and likelihood of reoffending. I accept that from the evidence overall, the offender has good prospects of rehabilitation and that there is a very low likelihood of his reoffending in a similar manner, or at all. I specifically reject the Crown submission that such a finding should not be made because he continues to deny having committed the offences and therefore has not expressed remorse. As I understand it, that is the only basis on which the Crown submits such a finding ought not be made.
That submission is not helpful because it ignores the many other bases on which a Court assesses prospects of rehabilitation and the likelihood of reoffending. They include the fact that there is no evidence of similar offending from November 2019 onwards, despite the extensive local publicity in the Bega area following his initial arrest and bail proceedings before he was committed for trial, ongoing publicity thereafter and the barrage of publicity following his conviction in June 2022 and subsequent proceedings alleging that he had breached bail shortly afterwards in the Narrabri area, always referring to him by name, and his connection with pony clubs in the Bega and Northern Tablelands areas. This of course means he has been on bail with conditions which have become increasingly strict, but only since June 2022, with no indication of similar or any other offending.
Further, he has no criminal convictions up to the time of this offending in 2019. In addition, he is now 67, suffers from at least one serious medical condition with the potential of other serious medical conditions in the future, will be in fulltime custody for at least a period of time which, if it has the desired effect, will be a powerful factor dissuading him from further offending. He will be therefore a somewhat older man when he is released and will thereafter be on parole for a period and will have restrictions on the extent to which, if at all, he can have contact with children apart from his own daughters.
He has the ongoing support of his wife and daughters, who are fully aware of the offences for which he had been convicted and for which he will go to prison. He is also a person currently in self-employment which, at least as I can presently understand it, will continue to be available to him on his release from custody.
These are all a myriad of other positive predictors for good prospects of rehabilitation and unlikelihood of reoffending, which in the circumstances of this case, in my view, significantly outweigh his ongoing denial of criminal responsibility.

Public Opprobrium as Extra Curial Punishment

It has been argued on behalf of the offender that the extensive media coverage surrounding his conviction and subsequent proceedings are such that it amounts to a mitigating factor here, namely public opprobrium as extra curial punishment. The Crown argues against that finding.
I accept that public opprobrium can be taken into account by a sentencing Court as a form of extra curial punishment. The decision of the High Court in Ryan v The Queen (2001) 206 CLR 267 ('Ryan') offers some assistance in this regard, albeit with no decided view.
I accept that, whether or not it is appropriate to do so in particular case, depends on the extent and nature of the public opprobrium arising as a result of criminal proceedings. In particular I refer with respect to the dicta of Kirby J in that case at p 123 as follows:

"…in a general way, the extent to which the appellant is now publicly identified as a paedophile as a result of the criminal proceedings taken against him. Where this occurs, the stigma will commonly add a significant element of shame and isolation to the prisoner and the prisoner's family. This may comprise a special burden that is incidental to the punishment imposed and connected with it. If properly based on evidence it could, in a particular case, be just to take such considerations into account in fixing the judicial punishment required". 4. As with most issues in sentencing, whether or not in a particular case such public opprobrium has been established as extra curial punishment depends on the circumstances and evidence, and particularly for offences such as this, the extent to which it goes beyond what could be, and perhaps should be, expected by way of denunciation. 5. In my view, some of the media coverage of this case went far beyond appropriate and expected denunciation of those who commit offences of child sexual assault. A bundle containing media reports and publications following the offender's conviction, and particularly following allegations that he breached bail conditions thereafter, has been tendered on his behalf. 6. He is identified in pictures and referred to as a "paedo". There is one newspaper report in particular which in my view takes matters beyond appropriate denunciation. In a front-page article on June 15, 2022, labelled "Exclusive" he is referred to as a "pony club prowler" with an assertion that he had breached the bail conditions imposed by this Court following his convictions by attending a gymkhana in a way that was described in the article as being "in blatant breach of his bail conditions." 7. This particular article was inaccurate in at least two respects. The bail conditions imposed by this Court following his convictions did not prevent him from attending pony club events at large, only in relation to two specific geographical areas, and such a broader condition was not sought by the DPP. 8. Also, the Court at Tamworth which heard the breach proceedings, in fact found that no breach had been established, which was not reported in that article, even though the article purported to report on those Tamworth proceedings. 9. Further, none of the offences for which I sentence him, or for that matter any of those for which he was acquitted by the jury, had any direct connection with any pony club, let alone the inference that he prowled pony club events in order to commit these offences. 10. The sensationalism, inaccuracies and frequency of these and other publications is relevant in determining whether or not in this case public opprobrium has occurred and ought be regarded as extra curial punishment. 11. This same article identified the fact that he resided with his family on a stud farm in a very small town in the Northern Tablelands area, which has a population of about 150 people which in the circumstances I accept almost certainly means that local people at least are able to identify where both he and his family live. That is a matter of some concern generally, but in particular here in the light of non-publication orders referring to his two young daughters. 12. In subsequent proceedings, when the Crown unsuccessfully sought to have his bail revoked in the Supreme Court and the details of his medical condition became public, at least one media commentator broadcast the following on 12 July:

"He's being treated for prostate or maybe bowel cancer ….. I hope he's riddled with it …..and I hope his life is short and I hope it is spent in gaol as well". 13. Later that same day, the same broadcaster expressed a similar view that he hoped the offender was "..riddled with cancer". In that same broadcast the same commentator made the following comment:

"Duncan is now notorious thanks to the publicity given to this case and when he goes to gaol, if he goes to gaol, he will be no doubt welcomed by fellow inmates." 14. This comment, it seems to me, recognises the notoriety achieved as a result of the media publicity, in particular surrounding the false allegation that he had breached bail and, in my view, is particularly inflammatory. Similar comments have been made by others and sent to the offender's wife, which is a matter I will address shortly. 15. It is part of the role of sentencing judges for offences such as this to denounce the offender and to do so publicly, to send a message of general deterrence, to ensure that an offender is specifically deterred from reoffending and to make an offender accountable for his offending and so accurate and measured media reporting for offences of child sexual abuse ensures that these aspects of any such sentence are properly disseminated into the community. There is no point having a message of general deterrence if no‑one hears the message and no point denouncing such offending by an individual if no-one knows. However, as Kirby J said in the High Court decision of Ryan, there are cases where the extent of that publicity is a factor relevant to sentencing and that, on my finding, is particularly so where the publicity is sensational and even more so where it is inaccurate. 16. In a decision of the New South Wales Supreme Court, R v Wran [2016] NSWSC 1015 ('Wran'), Harrison J was presented with a similar set of circumstances, albeit for a very different offence and a very different offender, but in circumstances where there had been, on his finding, a sustained unpleasant and often inaccurate campaign in some Sydney daily newspapers against the offender who he was sentencing. 17. In that sentence it was found that the intense media attention was disproportionate. His Honour also accepted that the public opprobrium that the offender suffered as a result was likely to cause a significant risk of custodial retribution, to the extent that His Honour in that case imposed a sentence which did not involve full-time custody. That would not be the appropriate outcome in the case before me, but I accept that some of the media coverage here has been disproportionate and sensational and has caused public opprobrium which is excessive and unfair and goes beyond denunciation, involving both the offender and his family, and that it is appropriate and open for me to take that into account as extra curial punishment when determining the appropriate sentence. 18. The Crown has argued that I should not do so and inter alia has submitted that he has not been subject to physical assault or pillorying in the media. As to physical assault, there is no evidence of course that that has occurred, albeit references to a possibility of custodial retribution, but the suggestion that he has not been the subject of pillorying in the media, in my view, is both disingenuous and unhelpful. 19. The fact that his character referees continue to support him and that he has not been cast out from the small community of about 150 people where he lives does not change that. As will be referred to soon, this public opprobrium has had the impact that his children have been cast out from their community, which is the very sort of extra curial punishment to him that Kirby J referred to in Wran. 20. Even if I be wrong in my assessment of the extent of this media attention as amounting to extra curial punishment, I nonetheless accept the submission made on the offender's behalf that, at the very least, it has served a s 3A purpose that the sentences reflect retribution, denunciation and specific deterrence.

Prospect of Custodial Retribution

It is appropriate at this point to deal more specifically with the aspect of the likely experience of imprisonment by the offender, in addition to the impact of his medical condition and in particular the prospect of custodial retribution because of the nature of his offending, and in his case because of the sensational media reporting.
In addition to the comments broadcast on 12 July with reference to the anticipated welcome the offender is likely to receive from fellow inmates because of the publication surrounding him which has made him notorious, there is evidence from the offender's wife by way of sworn affidavit tendered without objection and in circumstances where she was not required for cross‑examination.
I accept that on 2 June 2022 at about 10 at night, that being the day the jury returned their verdicts, she received an SMS on her mobile phone from a telephone number she did not recognise. It attached an audio-visual recording, a copy of which has been tendered and which I have both viewed and listened to on a number of occasions. I do not propose to read onto the record the contents of that message. That is set out in para 13 of her affidavit and those contents speak for themselves.
In summary, the vision would appear to indicate a group of about four people, men and women, sitting in a hotel or club drinking. One of the women, who has been identified by the offender's wife and who is wearing a mustard-coloured jumper, utters some swear words and then makes specific reference to the offender by name. All of the members of the group are laughing and, in particular, when this woman expresses what can only be regarded as a hope that the offender might be anally raped in custody as part of his punishment for this offending.
This would be offensive enough if said by any members of the general public and, regrettably, is often stated in writing in comments made following publicity for offences such as these. It is rendered more concerning here because I accept from her evidence that one of the four people present is a serving New South Wales police officer attached to the New South Wales Crime Command Child Abuse and Sex Crimes Squad who had a previous connection with the offender and his family. Mrs Duncan is in a position to be able to recognise and identify this offender accurately and has named her in her affidavit which was tendered without objection and in relation to which she was not required for cross-examination.
The serving police officer appears to be engaging in and endorsing the views of the other woman. Clearly the event is being recorded, probably on the mobile phone of the woman who was speaking. It is not clear who sent this text and attached recording to Mrs Duncan, but there can be no doubt that it was sent and what its contents are. It needs to be noted that this was sent to the wife of the offender, not to the offender himself.
It seems to me to be an outrageous view, which should never be held in a civilised community, that the appropriate punishment for any offence committed by any person, no matter how serious, would be that this person would be raped. One can only imagine the justifiable outrage if it were ever suggested that the appropriate punishment for any woman convicted of any offence would be that she was raped. It is no less outrageous if it be suggested as appropriate punishment for a man, no matter the offence.
That such a view might be held, let alone endorsed by a serving police officer attached the Child Abuse and Sex Crimes Squad is troubling. I comment on this particular piece of evidence because it is a part of the impact that these offences and the sentences I am about to impose for them have had on the offender's family and evidence of the hardship they will continue to suffer during his imprisonment. This particular piece of vitriol is part of that. It also to an extent it seems to me highlights at least the potential prospect of custodial retribution of the type which is regrettably known to the Courts and which I accept is increased in this case because of his notoriety arising from the excessive and often inaccurate publicity. Hopefully the offender will be assessed and placed in protective custody from the outset of his term of imprisonment so that the reality of this threat of custodial retribution is reduced and hopefully eliminated.

Impact on Offender's Family

I accept from the evidence of the offender's wife that there have been considerably adverse impacts on her and in particular the two children as a result of the offender being charged with these offences and in particular the publicity following his conviction and the inaccurate reporting following the false allegation that he breached bail. I accept that it is likely that these will continue, and it is likely that they will increase, at least for a period of time, as a result of the publicity which is likely to follow his inevitable imprisonment. The details of this are set out in her affidavit and they include her distress at receiving the text to which I have just referred.
Hardship to family is a matter which can be taken into account in determining an appropriate sentence. The fact that this is so in New South Wales sentences has been affirmed by the New South Wales Court of Criminal Appeal in the decision of Doyle v R [2022] NSWCCA 81 ('Doyle'). I do accept however that adverse consequences to an offender's family are, as has been referred to in other cases, the regrettable and almost invariable consequences of imprisonment and I accept from previous authority that usually only in exceptional cases should the adverse impact on innocent children of the imprisonment of their parents result in a substantial reduction or elimination of a term of imprisonment. However Doyle is authority for the proposition that it remains open for the Court to take hardship to the offender's family as a result of his imprisonment into account, and whether here it be classified as that, namely hardship to the family, or that the known impact on his family be regarded as extra curial punishment to him in circumstances where he will be in prison unable to protect them, in my view, on either basis, the Court is entitled to take that into account in this case when determining the appropriate penalty.
I accept from Mrs Duncan's affidavit that the intense media scrutiny has had a palpable adverse impact on the lives of her daughters in particular. He was arrested in November 2020, the family moved to the Tamworth area in early 2021 and as a result the girls moved school. However, following a news report at the beginning of term 2 in 2021 the school principal advised his wife that some of the parents at the school wanted this article to be distributed widely. It of course named him and as a result his daughters would have been identified. Fortunately, that did not happen, but I accept that from that time his daughters were bullied, harassed, and excluded at their school. They had made new friends in term 1 but those friends started to avoid them. I accept her evidence that those girls now have very few friends.
I accept that they have tried to transfer to local pony clubs in circumstances where the applications to join did not ever include the offender. They have been rejected by all three local pony clubs in their area. They have been able to continue to compete I some events because they remained a member of the South Coast club, but could not train or compete in local events, nor attend State events at the same level because they were refused the opportunity to join their own local pony club. The evidence is that the only reason for that is because of the offences committed by their father and the barrage of publicity that followed, particularly his convictions and the false allegation of breaching bail.
In her affidavit Mrs Duncan outlines the events of 11 and 12 of June where the offender was arrested in the presence of his daughters at a pony club event in Narrabri on the mistaken belief that his bail conditions prevented him from being present. The arrest occurred in public, without warning and in the presence and sight of his daughters who became very upset. As previously stated, the following day in the Court at Tamworth the breach was found not to have been established. The articles that followed, that seemed to connect his offending to pony clubs where both girls attended, compounded the negative impact on them.
I accept Mrs Duncan's evidence in this regard and in particular her opinions that the incorrect connection between the pony club and any of the offender's offending has had a particularly negative effect on her daughters. I accept her assertion, which is consistent with the evidence at trial, that the only connection between the pony club and any of these offences was that the family had met one of the complainants through the pony club.
I accept her evidence that her older daughter now suffers anxiety when any vehicle approaches the house, that her school attendance has deteriorated and that she becomes physically sick at the thought of going to school because she has suffered bullying, harassment, and exclusion at school and online. I accept that this child has decided to leave school at the end of year 10, this year, which is a matter of regret for her mother and will likely have an adverse impact on her in the future. I accept from Mrs Duncan that this daughter has become reclusive and can no longer talk to people in public because she anticipates they will judge her adversely because of the stories they have read about her father. I accept that this is likely to continue and probably increase, at least for a period, following the publicity that is likely to occur once he goes into custody today.
The younger daughter has received messages threatening to beat her up and teach her a lesson, which I accept in the context they are received are connected to the offences committed by her father. As I said previously some media articles have identified the very small area where they live and the nature of the property on which they live which makes their home easy to identify. Some of the messages have been sent to and received by his daughters following some of these media articles identifying the small town in which they live. One message sent to the younger daughter said the following: "We know where you live. We're coming for you little girl". This frightened and terrified the children and of course upset both of the parents. I accept Mrs Duncan's evidence that her daughters have been come sad and sick as a result of this incessant media reporting, particularly following the convictions.
On my finding that is likely to continue at least for a time after the offender is sentenced and more probably than not, as has occurred following his conviction and following the failed attempt at breach of bail proceedings and Supreme Court proceedings by way of revocation of bail, that this is likely to increase in vitriol, particularly as he will be sentenced to a period of imprisonment. The acts evidenced in the audio-visual recordings sent to Mrs Duncan make that sort of vitriol clear. It is to be noted that that was sent on the very night that he was convicted.
Other events occurred, as set out in Mrs Duncan's affidavit, in September at the Tamworth Agricultural Show, in which there was an attempt to arrest him, again in public in full view of his daughters and other members of his family, on a mistaken view that again he was in breach of a bail condition, which he was not. The older girl suffered an anxiety attack the following day and could not continue at school.
I also accept without going into detail the contents of Mrs Duncan's affidavit that in more recent times both girls have been excluded from riding lessons, where one of the instructors is a member of a local pony club. They have also been excluded from other riding lessons, specifically because those instructors have become aware of the offences involving the offender and the upcoming sentences. Another local pony club has recently, by a vote of a committee of adults, refused to allow the girls to attend events there, even though the offender would not be present and would not have been allowed to attend anyway because of his current bail conditions, and even refused to allow them to attend if they were in company with the family group of a friend, completely unconnected with any of these proceedings.
The offender's daughters have effectively been excluded by the community in which they live from continuing with their chosen sport or hobby at which they excel for no other reason than the sins of their father. They suffer ongoing and increasingly adverse mental health impacts at the very least as a result, and in my view it is trite to argue, as has the Crown here, that I would not take this into account as hardship to the offender's family because it has not come about as a result of his incarceration. This hardship will continue and, in my view, likely increase, at least for a period, following the inevitable publicity after he is sentenced today.
Whilst it is not of such an exceptional nature that it would mean anything other than full‑time custody as appropriate, nonetheless this hardship to his family is part of the overall circumstances, including the public opprobrium in which he is held and the extra curial punishment, because he is aware of these adverse impacts on his family over which he can have no control at all once he is in custody. It seems to me that it is such in this case that it is appropriate to take it into account when determining the appropriate overall sentence and non‑parole period.
It did not need to be like this. There would always have been adverse consequences to the offender and his family after he was arrested for these offences and particularly after he was convicted, and that regrettably is part of the impact on a wide range of people including victims, their families and the families of offenders when people are sentenced for offences of this type. However, it has gone further here than it should because of both the extent and sensational nature of the reporting, particularly where some of that is inaccurate, particularly in suggesting that any of these offences had any direct connection with any pony club anywhere in New South Wales or elsewhere.
It is worth repeating, and hopefully reporting, that none of these offences was committed because of any connection between the offender or his daughters and any pony club. One of the complainants came to know the offender's family because they were members of the same pony club, but otherwise the victims were school friends or family friends of the offender or his daughters, who were present either at camping trips or visits to his home because the children had arranged it between themselves, with the arrangements being finalised and signed off by their mothers.

Sentences

So, I come then to the appropriate sentences after those findings. As I have said, I find counts 5, 6, 7, 12 and 13 to be all slightly below the midrange in terms of objective seriousness. I find count 8 to be around the middle of the range largely because of the area in which OO was touched and the fact that she was touched on her bare skin. For counts 9 and 10, as I have said, they are at the bottom of the range for offences capable of being charged under this section.
That, of course, only deals with the issue of objective seriousness. All of the other matters to which I have referred must be taken into account in determining, first of all, whether or not the threshold for imprisonment has been reached and, if so, the appropriate length of the sentence.
I deal first of all with counts 9 and 10. The Court must first of all decide whether or not the threshold has been reached. If sentenced alone and taking into account all of the relevant matters about which evidence has been called and all of the identified purposes of sentencing, it seems to me it would not be open to the Court to find that no other sentence than imprisonment is justified. If these were the only offences being sentenced, in my view a Community Corrections order would be the appropriate sentence. In reality that is not an appropriate sentence here because it would be entirely subsumed by the terms of imprisonment which will be imposed for the other offences.
It seems to me that that is the reason for the enactment of s 10A of the Crimes (Sentencing Procedure) Act 1999 and I propose to deal with those sentences in that way. This means that there will be a conviction for these offences and a recognition of the seriousness of the offending, but that in the circumstances of this case, particularly because of the sentences that will be imposed for the other offences, no other penalty is required or appropriate.
I am conscious that some in the community may view this as being lenient. It is not. It is simply a recognition of the law which, as a Judge, I am obliged to apply, in this case the provisions of s 5 of the Crimes (Sentencing Procedure) Act 1999. It would be wrong to find that the only appropriate sentence for any particular offence would be imprisonment if the only reason for doing so is a matter of sentencing convenience. If I could impose a Community Corrections order that did not commence until he was released on parole I would do so, but that is not an order I am entitled to make under the provisions of the Act, and I also note that the maximum length of any Community Corrections order in any event is three years.
I should also note that in relation to all of these matters they are offences which would have been capable of being dealt with in the Local Court where the maximum jurisdictional limit for any of them would be 2 years and the maximum aggregate which could be imposed is 5 years.
I propose to deal with the remaining offences by way of an aggregate sentence. Taking into the account the findings of objective seriousness and all of the other matters to which I have referred, in my view the indicative sentences for each of them are as follows:

Count 5: 18 months. Count 6: 18 months. Count 7: 18 months. Count 8: 2 years and 6 months. Count 12: 2 years. Count 13: 2 years.

I indicate that when determining the aggregate sentence, I regard counts 7 and 8 as being part of the same incident and so will regard them in that way when determining the appropriate aggregate sentence.
If each of these was accumulated on the other, taking into account the concurrence which would attach to counts 7 and 8, that would give rise to an overall sentence of 9 years and 6 months, which in my view is excessive.
I have decided that the appropriate sentence for these six matters is an overall sentence of 5 years imprisonment.
There are special circumstances as follows: 1. That this is the first time in prison custody. 2. That the offender's age and medical condition will make his experience of custody more onerous. 3. The likelihood that in addition to the impact of those medical conditions he will serve his sentence in protection because of the nature of his offending and past and likely future publicity, and the notoriety which has and will likely surround him.
In those circumstances I have decided to impose a non‑parole period of 2 years and 6 months, all commencing yesterday, 3 November 2022.
For those reasons I make the following formal orders: 1. For each of the eight offences, he is convicted. 2. For counts 9 and 10, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, no further penalty. 3. For counts 5, 6, 7, 8, 12 and 13, I impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, comprising a non‑parole period of 2 years and 6 months, commencing 3 November 2022, expiring 2 May 2025, with parole thereafter of 2 years and 6 months commencing 3 May 2025, expiring 2 November 2027, giving rise to an overall term of imprisonment of 5 years commencing 3 November 2022, expiring 2 November 2027.
I have already announced the indicative sentences for those offences.
I am required to inform the offender of the existence of the provisions of s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), which is applicable to these offences. I am obliged to warn the offender that because of the definitions of serious offence and serious sexual offence contained in ss 4 and 5 of the Crimes (High Risk Offenders) Act 2006 that he automatically is subject to the provisions of that Act. So far as I understand the provisions of s 25C my obligation is to warn him that this section of this Act exists, and that it may apply because of the nature of the offences for which he is sentenced. I am provided with no further assistance of any other warning that I may be required to give him, and I note, pursuant to sub-s 25C(2), that any failure to comply with this does not affect the validity of any sentence imposed. Is anything further required?
MORRIS: Yes, I'd ask your Honour to adjourn those proceedings for counts 3 and 4 to 23 November this year at the regional call over.
HER HONOUR: Right. I'm not even sure that they've even been formally running along with these sentences, but let's assume they are for the moment. He was just simply discharged on them before the jury, and I don't actually remember any other reference to them at all. Are they still in Justice Link?
Counts 3 and 4, an indictment dated 11 May 2022, is that the most recent one? 18 May 2022. Adjourned for mention at a regional telephone call over on 23 November 2022. I don't need to make any bail orders or anything?
MORRIS: No, your Honour.
HER HONOUR: Sorry, I don't mean bail, I mean attendance orders or anything like that, do I?
PONTELLO: No, your Honour. They don't attend the regional call over anyway.
HER HONOUR: Okay. Do I need to make any other orders?
PONTELLO: I'd submit not, your Honour.
HER HONOUR: Mr Crown?
MORRIS: No, your Honour.
HER HONOUR: I will then adjourn the court and he can be taken into custody.

Amendments 09 November 2022 - Parra 68: 'subject' changed to 'subjective' Parra 94: 'dictum' changed to 'dicta' 14 November 2022 - Para 128: 'revocation of appeal' changed to 'revocation of bail'. Para 132: 'extra crucial' changed to 'extra curial' Para 133: 'being' - word deleted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2024

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (5)

Cited By (3)