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[2025] NSWDC 519
General information, not legal advice.
District Court of NSW
2025-11-18
Wass SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Dunn [2025] NSWDC 519
Hearing dates: 17 October 2025
Decision date: 18 November 2025
Jurisdiction: Criminal
Before: Wass SC DCJ
Decision: See [132] – [142]
Catchwords: MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special Hearing — Mental impairment — Advanced dementia — Special verdicts of on the limited evidence available, the accused committed the offences charged
CRIME — Sentencing — Historical child sexual offending — Aggravated indecent assault of a person under 16 — Act of indecency with a child under 16 — Sexual intercourse with a child aged between ten and 16
Legislation Cited: Crimes Act 1900 (NSW) ss 61M(1)-(2), 61N(1), 66A, 66C(1)-(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(2)(ea),(eb), 21A(3)(i), 21A(5A), 25AA(3), 21B(1),(3), 54(c)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 63(2)-(5), 64
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
GS v R [2016] NSWCCA 266
LIU v R [2023] NSWCCA 30
PN v R [2024] NSWCCA 86
R v Allen (a pseudonym) (No 2) [2024] NSWDC 300
R v AN [2005] NSWCA 239
R v Antin (a pseudonym) (No 2) [2021] NSWDC 584
R v Wheeler [2000] NSWCCA 34
Regina v Graham Edward Mailes [2004] NSWCCA 394
RS v R [2013] NSWCCA 227
Tsoumbanellis v R [2025] NSWCCA 107
VP v R [2021] NSWCCA 11
Category: Principal judgment
Parties: Rex (Crown)
Kenneth Wayne Dunn (Offender)
Representation: Counsel:
Mr C Penning (Solicitor Advocate) (Crown)
Mr J McKenzie (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Blue Water Legal (Offender)
File Number(s): 2022/274719
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), there is to be no publication of any matter which identifies the complainant
On 7 May 2025, pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘MHCIFP Act’), I held that on the limited evidence available, Mr Dunn had committed the following six offences against H. These remarks are to be read with that judgment: R v Dunn [2025] NSWDC 516.
Count 1: aggravated indecent assault of a person under 16 pursuant to s 61M(1) of the *Crimes Act 1900 (*NSW) (‘Crimes Act’), which carries a maximum penalty of seven years’ imprisonment.
Count 2: act of indecency with a child under 16 pursuant to s 61N(1) of the Crimes Act, which carries a maximum penalty of two years’ imprisonment.
Counts 3, 4, 5 and 6: sexual intercourse with a child aged between ten and 16 pursuant to s 66C(1) of the Crimes Act, which in each case, carries a maximum penalty of eight years’ imprisonment.
The maximum penalties that were set at that time serve as valuable guideposts in consideration of any penalty to be imposed under the Crimes Act. I am also mindful, however, of the current sentencing patterns and practices as required by s 21B(1) and noting s 21B(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’). The offences are all child sexual offences.
Mr Dunn, born in May 1949, is 76 years old and suffers from dementia, a degenerative disease for which there is no recovery or cure for him at this time. He did not give evidence either during the special hearing or at this penalty hearing.
There is no evidence that he was unfit or suffering cognitive defects at the time of the offending when he was in his late forties or early fifties and employed by H’s family.
I refer to H in that way, with no disrespect. Indeed, it is to protect her privacy as best I can. I have also refrained from referring to H as “the victim”. I have no way of knowing if that is a label that she wishes for herself. Indeed, my overall impression of H is that, as a woman now in her thirties, she is a strong and stoic survivor.
H met Mr Dunn when she was perhaps in kindergarten, aged around five. He was working for her parents in the family’s service station. He was at the station multiple times a week.
The indictment alleges a period of time for most offences between November 1996 and September 2002. The final offence has a period much shorter, occurring between August 2001 and September 2002, the year leading up to H’s interview with police in 2002 when she was only ten. As pleaded on the indictment, and with no evidence that I could conclude that she was younger, I have dealt with each offence on the basis that H was about ten when that offending occurred.
However, things of a sexual nature commenced with H when she was about five, almost immediately from the time Mr Dunn first met her. They continued until she was ten when the matter was reported to police and Mr Dunn was terminated from his employment.
In each case, the age discrepancy was large. Mr Dunn was aged in his early fifties.
The offending was regular. H said it “would have happened on a weekly, maybe multiple times a week, basis”.
As part of grooming behaviour, and in order to obtain secrecy and trust from H, she had been rewarded on occasions when she did something sexual. She would access chocolate or maybe two-dollar coins as a general reward for what was happening.
The offending occurred often in H’s home. H would hear noises and they would stop what they were doing. It took place often in close proximity to H’s parents and others as they worked downstairs in the service station. The ongoing abuse occurred in close proximity to others all with the expectation by Mr Dunn that he was not going to be discovered, where he had groomed H into a selfish conspiracy of silence.
As observed by McCallum JA, as she then was, in VP v R [2021] NSWCCA 11 at [79],
“The proposition that the applicant could have silently touched and kissed the complainant in the way she describes as they lay on the floor next to the mattress without being observed by the other girls on the mattress does not cause me to entertain any doubt as to the applicant’s guilt on those counts. Experience of such trials tells that stealth, opportunism and brazenness are common features of child sexual offending.”
H described the offending in multiple places. None of the offences were isolated events. They all occurred in the context of ongoing sexual abuse.
H had a childhood friend, K, from about the time she was seven. K was looked after by EF, a friend of Mr Dunn’s, a matter I will return to in the context of count 6.
When H was aged about ten, Mr Dunn put his hand down her pyjama top and felt, skin-on-skin, her developing breasts as she was letting him out of the house after Sunday dinner. She was burgeoning into puberty, a time of vulnerability. H was frozen to the spot, although by then she had been used to his conduct. She was angry with him for doing this, but also conflicted because she believed they were in a relationship where she loved the attention. It was clear by that evidence that by then, grooming behaviour had already occurred.
The conduct was brazen and conducted against H in her home where she had an increased entitlement to feel safe and secure. Mr Dunn, no doubt, relied on the trust and secrecy that he had engendered in H, where they had been, to use Mr Dunn’s later words, “sneaking around”.
Again, in a brazen act in H’s own home, H was sitting at the bottom of the staircase. Mr Dunn stood in front of her. He removed his penis from his pants and in order to coax her compliance, said something like, “Do you want to touch it? Why don’t you touch it?” H touched his penis with her hand for a split second. She was rewarded for that. Mr Dunn gave her a Mars or a Snickers bar from the service station shop. That required, in my view, a degree of forethought.
It is a serious example of an offence of this type.
H was at home, sick from school, and was in the lounge room watching TV. She was particularly vulnerable.
Not for the first time, Mr Dunn performed cunnilingus upon her, a serious invasion of her person.
H lay on the table. Mr Dunn removed her underwear and licked her vagina for “minutes not seconds”. Mr Dunn had so successfully groomed her by that point that, to use her words, she “leaned into it”. Mr Dunn had said things in the past to H such as, “It feels good, doesn’t it?” She recalled that it did feel good, but that she also knew that it was wrong and that she was doing something naughty, so she felt guilty. Conflicted and undeserved feelings of shame and guilt are the hallmarks of the insidious harm this offending causes.
The offending is a serious example of the offence. It took place with the offender being in the family home without the permission or excuse of anyone. It took place over some minutes, with the removal of H’s underwear, taken with some degree of premeditation and forethought.
Having somehow earned the agreement of H and the family, H would go to Mr Dunn’s house to feed the chickens, with some of her siblings. H and Mr Dunn went into a bedroom. Mr Dunn lay on his back on the bed, removed H’s shorts and underwear and she kneeled on either side of his face. He licked her vagina for some minutes before she returned to her siblings.
H had no real ability to remove herself from that situation. The act was highly invasive. The offending was not fleeting and required forethought and planning.
Some time between August 2001 and September 2002, when H was about ten, EF collected K and H and took them to Mr Dunn’s house.
By this time, Mr Dunn had offended against H over the years such that she had normalised the sexualised acts committed against her.
The offence commenced with K still in the room, a matter which aggravates the offending. The grooming and earlier offending had arrived at a point where Mr Dunn could act with impunity.
According to K in an interview with police in September 2002, either Mr Dunn or H took down her pants. Mr Dunn laid H on the floor. He committed an act of cunnilingus. K then looked away and ultimately left, disgusted by what she had viewed. H later tried to explain the situation to K, embarrassed and ashamed.
In an interview with police in September 2002, when H was still ten, such was the grooming that had taken place that she was conflicted and unco-operative, to a point of some denials, as to what had occurred. She found the interview distressing. The second interview a few days later resulted in H telling police that Mr Dunn had licked her vagina, but only saying so knowing that by then, that K had also said so.
Mr Dunn was 52 or 53 years of age.
There was a degree of premeditation. Mr Dunn took a number of positive steps to that end. He entered the room where H was with her friend, he laid her on the floor and either removed or had her remove her own underwear. The offending commenced in the presence of K, thus exposing K to child sexual abuse, which she found repulsive and which was, no doubt, harmful to her. It is a very serious matter.
These are all serious offences. They took place in the context of years of offending against and grooming of H since she was only five and which did not end until she was ten, when the offending was reported by K.
Sexual offences against children are to be treated with the utmost seriousness. These offences caused significant harm to H. The offending was ongoing, persistent and, at times, highly invasive.
Unfortunately, the significant psychological harm done to H was sadly inevitable, serious and long term, a matter to which I will return.
All offences are aggravated by the fact that they were committed either in H’s home, where she was entitled to feel safe and secure, or in the home of the offender where he was in some kind of supervisory role: s 21A(2)(eb) CSP Act.
Count 6 is further aggravated by the fact that the offending conduct commenced in the presence of another child: s 21A(2)(ea) CSP Act.
Mr Dunn has a criminal record.
In 1968, when he was 19, he was convicted of carnal knowledge of a girl under the age of 16. He received a 12 month recognizance. Without the detail of that matter, other than the fact of a non-custodial sentence, I find that it is so antiquated and the age gap between the two to be potentially so slight, that it has been largely irrelevant.
Even less relevantly, in 1971, Mr Dunn committed a number of stealing offences and in 1977, he drove with a prescribed concentration of alcohol above the legal limit. Fines were imposed.
That is not to say that he is a person of good character.
The Crown accepts that Mr Dunn has “good character”, but submits that this was of assistance to him in committing the offences and should not be taken into account as a mitigating factor on setting a penalty: s 21A(5A) CSP Act.
In my view, there is little evidence that his perceived good character was of any assistance. He committed most of the offences whilst a trespasser in the family home, having obtained employment in the service station. There is no evidence as to how it came to be that H was able to go to Mr Dunn’s home.
However, in my view, it is not the case that by the time he committed these offences that Mr Dunn was a man of good character. He had committed any number of egregious acts against H prior to these matters occurring. He has had the benefit of putting forward to the world for decades that he was a man of good character, a reputation he simply did not deserve.
Remorse is only to be taken into account where there is evidence that Mr Dunn has taken responsibility for his actions and acknowledged any injury, loss or damage caused by his actions: s 21A(3)(i) CSP Act.
The Crown submits that there is no evidence of remorse.
By the time of the special hearing, Mr Dunn was in no position to be able to enter pleas of guilty. There is, however, notwithstanding, in my view, some evidence of remorse and regret over what occurred. Mr Dunn later denied the offending entirely, although by then he was in the grips of dementia and I have given that second matter little weight.
In September 2022, H telephoned Mr Dunn and he made a number of admissions:
When H asked about something that happened when she was younger, and whether he had anything to say, he said, “It’s just something that goes back to my childhood, I think” … “I’m sure it does because I was molested by my father, I was only five” and later, “I can’t help you in any other way, sorry.”
H asked, “So you’re sorry for what you did to me?” Mr Dunn responded, “Of course, yes, yes.”
H said, “You did take a fair bit of my first experiences away from me.” Mr Dunn responded, “Yeah, yeah, yeah, well, and I am sorry. I’m really so, so…”
H asked, “I would like to know what you’re sorry for.” Mr Dunn replied, “Well, for what we did… Sneaking around doing things.”
H said, “…It’s been a long time and it’s been, as you would know, it’s very traumatising.” Mr Dunn responded, “Of course and it has actually been on my mind for a long, long time. Still is. Still is” … “You know I can’t apologise enough” … “That would have been haunting you for all that time” … “It doesn’t go away, does it?”
H said, “Unlike you, I won’t victimise anyone else.” Mr Dunn responded, “No, definitely not, no.”
H said, “Gotta make sure that that doesn’t continue to be a cycle.” Mr Dunn said, “Yeah, yeah… Well, I hope not… I know I won’t, no way, I don’t look at anyone twice any more.”
Later, Mr Dunn said, “I don’t think you’ll ever recover and I know I shouldn’t be one and both should from my father and from you. Yeah.”
I do not know if that is of any comfort to H but it shows, in my view, at that time at least, a level of regret and remorse and insight into what Mr Dunn believed had caused him to offend.
I have considered that Mr Dunn’s mental health impairment may have limited his ability to demonstrate mitigating factors for any penalty hearing and his inability to have entered a plea of guilty for the purpose of obtaining a discount on any penalty.
The Court may apply a discount to what would have been available, had a plea of guilty been entered: s 63(5)(a)-(b) MHCIFP Act.
Given the admissions on the one hand but also Mr Dunn’s denials when tested, I have not been able to positively find that Mr Dunn would have pleaded guilty to sexual offending to an extent that would have been accepted by the Crown. I have, however, imposed a discount of 5% on any penalty to account for the prospect that this may have occurred.
The Crown submits that the offender’s prospects of rehabilitation are limited, given his cognitive deficits. I agree. However, his risk of reoffending, given his health issues and lack of offending since, is, in my view, extremely low. The community has nothing now to fear from Mr Dunn.
Dr Senanayake’s two reports dated 18 May 2023 and 31 August 2023 provide as follows:
Mr Dunn was assessed on 18 May 2023 and in August 2023.
His dementia was found to be moderately severe. His short term memory and decision making abilities were, by then, compromised.
On 22 November 2023, Dr Leland assessed Mr Dunn. Relevant are the following matters, which I have taken into account:
Mr Dunn presented at that assessment as frail.
Mr Dunn had been living with his partner, Lynette Cook and her adult son, who lives in a back unit on the property. Mr Dunn had retired. He had worked in several menial trades throughout his life and received government financial assistance, but continued to work odd jobs for trades and additional money.
Mr Dunn had a child in his late adolescence that was given up for adoption, due to his and the baby’s mother’s youth. He had contact with his daughter 20 years ago, noting that she was looking for medical history information. He reported a desire to connect with her, however, wanted to respect her privacy. At that time, he had a close relationship with his four sisters.
Mr Dunn had, by the time of the assessment, limited insight into his dementia and cognitive confusion. He was also struggling with self-care and hygiene. He could no longer read his own handwriting.
Mr Dunn felt sad, lonely and hopeless, and had a diminished interest in his life. He disclosed a plan to take a large amount of prescribed medication, which he had already collected, with an intent to end his life if he returns to prison.
Mr Dunn suffered a history of mental illness, beginning in early adulthood. He had self-harmed at the age of 20. He was voluntarily hospitalised at Cumberland Hospital for 12 months for his depressive symptoms.
His stressors were a series of deaths from his family and thoughts about his own childhood sexual abuse. Mr Dunn reported that he was sexually abused by a priest from school.
Mr Dunn has a history of alcohol abuse, drinking excessively from 20 to 40 years of age. He stopped after vomiting blood and contracting liver disease.
Mr Dunn experienced learning and emotional difficulties at school. He did not like school and was often in trouble for fighting and truancy. He left when he was 14 years of age.
On testing, he had a limited ability to make sound decisions. He had deficits in attention, memory, language, fluency and visual-spatial functioning, compatible with multi-domain cognitive impairment. His emotional functioning was noted to be worsening with the court date and loss of a close family member. His mood was described as “depression”.
Dr Martin assessed Mr Dunn on 30 January 2024 and reported:
Mr Dunn had not worked for about five years, having last worked as a cleaner in the operating theatres of Kempsey Hospital, and lost his job following these charges.
By this time, Mr Dunn’s memory was poor and he often forgot tasks, sometimes became lost, and had poor self-care. He was still driving locally.
He was suffering a low mood and generally felt anxious. His appetite was poor. He had lost 18 kilograms in the past 12 months.
He was seeing a psychologist, Alan Anderson, about once a month.
Dr Martin later conferred with Mr Anderson, who confirmed that he had seen Mr Dunn on many occasions over the last 10 months and confirmed Mr Dunn’s dementia.
Mr Dunn reported not only the sexual abuse by a priest teacher but also by his father. His mother left his father when he was five. His younger brother had schizophrenia and had died.
Testing revealed significant deficits across various cognitive domains, including for short term recall. He made repeated comments in that assessment regarding his innocence and said, “I wouldn’t do that to a child – it happened to me” but did not give further detail.
Dr Dornan, psychologist, assessed Mr Dunn on 13 August 2025. Relevantly:
By then, Mr Dunn appeared dishevelled and forgetful. He had slept the night in the car, having confused an arrangement to stay with a friend. He was at times confused during the assessment.
His pervasive mood was pessimistic, and his effect was labile. He experienced persistent psycho-motor agitation, tremulousness and there was some evidence of hypervigilance.
Mr Dunn presented at that time with significantly impaired judgement and had limited insight into his current circumstances.
He recounted that his mother was an “amazing person, who did everything for her kids” and that she “went without, so her kids could have everything.” Mr Dunn’s mother died arising from various amputations in the context of diabetes. He experienced symptoms of grief and loss after her death, and had not entirely recovered. His mother’s death contributed to a significant decline in his mental health, resulting in the earlier mentioned hospitalisation.
Mr Dunn expressed anger, hatred and a lack of care for his father. He did not believe his father “ever really cared about” them. He described his father as an alcoholic, who was sexually abusive towards him, and who was likely physically abusive towards his mother, causing her to end the relationship. His only memory of his father related to him being naked in bed with him, and that he was “molested”, but was unable to recall any details.
Mr Dunn grew up in abject poverty, as his mother did not work and she had to care for seven young children alone. They mostly had food, but little else. The electricity was regularly disconnected.
Mr Dunn had limited memories of his childhood. He gave further details of being sexually abused by a local priest on several occasions when he was about seven. He was sexually touched and forced into oral sex. He reported that he was “absolutely terrified” of the priest, who told him that if he disclosed the abuse, the devil would come and take him from his mother.
The priest was well known to the family, having performed the marriage for his sisters, and was a frequent visitor to the home. Mr Dunn would see him “almost every day” as a child. He never told his mother about the abuse. He avoided the issue by staying away from the family home. Many years later, Mr Dunn still felt anxious talking about it.
Mr Dunn experienced post-traumatic stress disorder, although he had little or no insight into the symptoms. He reported persistent and intrusive flashbacks, nightmares and severe anxiety, along with avoidance of reminders and emotional numbness. Mr Dunn was also irritable and hypervigilant. He had difficulty sleeping and described being “always anxious” and easily triggered to distress, stating that he was often reactive and aggressive as a result.
As he transitioned into adolescence, Mr Dunn was anti-social and would frequently “run away from home”.
By the age of 16, Mr Dunn had begun consuming alcohol. Alcohol made him easily triggered to distress and aggression.
Mr Dunn was moved from his primary school to a school run by the Christian Brothers. Their presence triggered memories of sexual abuse and created significant distress. Mr Dunn would avoid attending school.
Mr Dunn was a poor student in high school and could not concentrate. He failed to pay close attention to details and made careless mistakes. He struggled with organising tasks and activities, and avoided tasks that required focus and mental effort, such as homework and was easily distracted, likely having a root cause in his background of complex trauma that, very sadly for him and tragically for H, was never the subject of professional treatment.
Mr Dunn left school when he was “14 years and nine months old”, the likely minimum age to do so. He had a range of different jobs after leaving school. He struggled to “hold down a normal job” and was unable to function in the workplace. He was unable to sustain working for longer than a few weeks before advising that he “couldn’t cope and just quit”. He described a common pattern of working for brief periods before he “just packed up and left”, confirming that he would often quit his job with no particular reason.
At the age of 17, his child was removed to the care of the State. His mental health declined, experiencing increased symptoms of depression. He suffered developmental trauma, leading to post-traumatic stress disorder.
Mr Dunn’s first stable period of employment occurred in his early twenties, working in Woolworths, where he “didn’t have to deal with people”. This position came to an end when his mother passed away and he was admitted to the Cumberland Hospital.
Thereafter, he said he undertook “mainly cleaning jobs”, throughout the remainder of his working life and “kept moving on”. It is notable, however, that he made no mention of working in the service station the subject of these matters, a place where he worked for more than five years.
The majority of Mr Dunn’s support in the community comes from his companion, Ms Cook. He has few friends, spending the majority of his time gardening, walking with pets or staying at home. This has been a longstanding situation. He was not lonely, preferring his own company.
There is an apparent disconnect between Mr Dunn’s view of his relationship and that held by Ms Cook. He says that it is the only significant relationship that he has had, citing that they have been together for more than 20 years and that they were “a normal couple” but, as Mr Dunn saw it, with little interest in sex as Mr Dunn had a low sex drive. I will return to Ms Cook’s account when I come to consider her evidence, and the effect on any third party.
As I have mentioned and as shown from the report, Mr Dunn has had a complex relationship with his daughter. He no longer has any contact with her. She was initially removed from his care as a baby. He had contact with her after she had just turned 20 and sought him out. Indeed, she lived with him for about 12 months or so and he supported her financially, assisting her to travel to England. The relationship was proceeding well but, after a few years, inexplicably to Mr Dunn at least, “everything stopped and [he] never saw her again”. He would like to have maintained the relationship with her, but has “no idea where she is or even how to find her”.
Dr Vattekad, nephrologist, assessed Mr Dunn on 4 June 2024.
His local general practitioner confirmed on 9 October 2025 that Mr Dunn is suffering from the following:
Alzheimer’s dementia;
Chronic kidney disease – stage 3 (suggesting moderate damage and related hyperuricemia);
Osteoarthritis or osteoporosis;
Depression;
Type 2 diabetes and related neuropathy;
High cholesterol;
High blood pressure;
Gastro-oesophageal reflux disease;
Colon polyps;
Asthma;
An enlarged prostate consistent with his age;
Insomnia; and
Plural plaques from asbestos exposure.
He is, or was then, on an array of medications.
Mr Dunn was in custody for approximately eight weeks after his arrest.
He told Dr Dornan that he felt “safe, but isolated”. His mental health significantly declined during that time. He said to Dr Dornan that he believed that he would not be able to cope in custody due to his age, health issues and, in particular, his dementia symptoms.
It is accepted that further incarceration would be detrimental to Mr Dunn’s health due to his complex psychological vulnerabilities and physical ailments. His Alzheimer’s diagnosis would render him unable to comprehend prison rules, navigate institutional demands or advocate for his own needs. Much of those tasks are currently carried out by Ms Cook.
Corrective Services has a duty of care to provide a safe, secure and a humane environment for aged and frail inmates. Its ability to comply with that duty was not the subject of evidence. The following matters from the policy are relevant to Mr Dunn. There is no evidence as to the extent to which the policy will benefit Mr Dunn in particular.
According to the policy at least, Mr Dunn will be eligible for identification as aged and frail for the purposes of placement and the provision of relevant services and programs.
He will be considered for placement in an aged and frail program or in a specific correctional centre which has a modified area. Housing options are also being explored for other correctional centres, particularly those in rural locations, of which Taree is one.
Following assessment, placement decisions for Mr Dunn will be made by the Aged Care Bed Demand Committee. Corrective Services NSW and Justice Health staff will then work together to ensure that the physical, cognitive, security and medical needs of any inmate are met through the development of comprehensive case plans.
Mr Dunn may need extra resources to assist him with managing activities of daily living or to cope with chronic health conditions.
I have had regard to the trauma of sexual abuse on children as now widely understood, including research and the common experience of the courts: s 25AA(3) CSP Act. It was also abundantly clear from H’s evidence in the hearing, some of which I will now repeat.
Mr Dunn took from H “so many first” experiences.
By the end of Year 10, when H was about 15, she had a boyfriend, B, who was 16. They went out for about three years until H was almost 20. When the two were being intimate, H would have flashbacks and they would have to stop while H attempted to cope. H was not comfortable with certain acts because it reminded her of the offending. The topic of H’s abuse came up quite a number of times and H was upset.
By 2021, H was interested in pursuing information about what had happened to her as a child.
Reading from the documents of the time, it reinforced everything that she “sort of knew and felt” at the time.
H was impeded in her evidence by the nature of what had happened to her. There were some instances that she did not wish to and so chose not to recall. The overwhelming nature of remembering and recalling, in trying to recall what she remembered but being careful not to confuse circumstances and the need to be clear, was a significant undertaking. Some vivid memories were not put in statements. She explained, “If I was to attempt to include every memory I could, we would never go to trial. That is the nature of the entire situation. I am always going to be triggered.” Accordingly, she was required in the special hearing to be careful not to consciously bring some matters to mind or to explain them. This did not undermine the veracity of her evidence. Her account was compelling. She was a very careful witness who recounted only those things that could be explained clearly.
In her victim impact statement, H relevantly set out as follows:
“First, I want to acknowledge what was done to you. No child deserves that. You deserved safety, love, and protection – just as I did.
You knew the fear, the confusion and the life long damage abuse causes because you lived it and yet you knowingly chose to hand me the same sentence. You gave me a childhood marked by fear and shame. You gave me years of silence, of feeling unsafe in my own home and in my own body.
I have been serving the [sentence] you gave me for more than two decades and will continue serving it for the rest of my life. The sentence you gave me began when I was too young to remember much other than the abuse. For over two decades, I have lived with flashbacks, self-hate, and the constant weight of what you did. I carried your shame as if it were my own. I avoided eye contact with my own father because I felt like I was the one who had done something wrong. Your actions follow me into every part of my life. I am dragged back into rooms and moments that I never chose. I suffered from panic attacks, thinking I owned the shame I felt. I have lived with depression, anxiety and self-doubt, that consumed my childhood and followed me into my adult life. Every relationship, platonic or intimate, is affected by the sentence you gave me. I struggle to trust anyone. I even struggled to trust those that loved me as a child because of your choices. Intimacy, closeness and simple ability to feel safe in my own body was stolen from me. I withdraw from friends, isolate myself, and have turned to reckless behaviour and self-destruction to try and escape the trauma that lives in every part of my life. You gave me a life sentence. I have been serving it every day since.
There is nothing that will return the childhood you stole or undo the damage you caused. This process does not heal me. It does not give me back the little girl who deserved safety and freedom but I will no longer carry your shame. That burden belongs to you and it ends here. You do not own my future.
I am no longer protecting you, I am protecting me.”
That, in my view, was an eloquent and moving description of the significant and ongoing harm caused by Mr Dunn’s offending.
Unfortunately, they are the effects that often arise from this kind of insidious sexual offending, where secrets are demanded, where emotions are conflicted, where sexual awareness is set on another person’s timing in a wholly inappropriate and damaging way, and where trust and security is almost entirely demolished.
Any limiting term should recognise the significant harm that has been done to H, and to those who care for her.
The overall penalty for the multiple offences committed by Mr Dunn must be just and appropriate to the total of the criminality of the offending.
An aggregate sentence is not available in relation to limiting terms: s 54(c) CSP Act. Accordingly, where limiting terms would be set, they must be set separately.
The principle of totality requires some degree of concurrency, considering the multiple offences committed against H. None, however, could be categorised as one continuous course of conduct. Any term needs to have regard to the separate harm done to H every time Mr Dunn offended against her.
In RS v R [2013] NSWCCA 227, Schmidt J (with whom Beazley P and McCallum J agreed) stated (at [32]),
“As discussed in R v AN [2005] NSWCA 239 at [13], in determining a limiting term 'the court is to adopt and apply all the principles of sentencing, whether arising under the common law or statue, that apply in sentencing a person convicted of the offence'. In a case of multiple offences, such as this case, that requires consideration to be given to the question of totality and whether cumulative or partly cumulative sentences should be imposed, in order to properly reflect the overall criminality of the entire offending. It follows that whenever more than one limiting term is being imposed, questions of concurrency and accumulation will necessarily arise for consideration under s 23(1).”
The offending involved discrete serious criminal acts. Mr Dunn had the opportunity to reflect on what he was doing, only to go on and offend again against H, thereby causing additional harm to her. A high degree of concurrency is not justified.
Wilson J in PN v R [2024] NSWCCA 86 cited at [67] (Chen J and Huggett J agreeing) as follows, and it is apposite to this case,
“To view the repeated abuse of a child in that way is to diminish the extreme gravity of repetitive child sexual assault offences, and the great and compounding harm done. There is no reason to regard the additional harm occasioned to a child victim by repeated assaults as minor. As the sentencing judge observed, the 14 State offences of which the applicant was convicted, together with the offences listed on the two Form 1 documents, constituted serious and separate criminal conduct. Serious and separate criminal conduct cannot ordinarily be adequately comprehended by the imposition of largely concurrent sentences. Such an approach would fail to reflect the terrible damage done by each separate assault. It would also have the utterly unacceptable practical outcome of appearing to reward those who commit multiple offences.”
I have had regard to R v Wheeler [2000] NSWCCA 34 at [37].
Serious repeat offending on different occasion does not, in my view, call for any real need of concurrence of a sentence. It is only the principle of totality that requires some concurrence between any stated limiting term, to assure that the total penalty bears an appropriate relativity to the findings made.
This offending is insidious, selfish and extremely harmful. H had no capacity to protect herself from Mr Dunn, who chose to commit sexual offences against her, who encouraged and confused her and entirely took advantage of her. It is important that any limiting term, despite the effluxion of time and the nature of the proceedings, sends a strong message of denunciation.
There is still a need, in my view, for general deterrence, despite Mr Dunn’s cognitive decline. Like-minded offenders, hopeful that with the passing of the years, that they got away with their offending and that they are now too old or too unwell to be called to account, are on notice that this will not likely occur.
These offences are serious examples of child sexual assault committed in the context of ongoing abuse over several years.
Any penalty should ensure that the conduct of the offender be denounced, and that the profound harm to H be recognised.
Ms Cook gave evidence. She described herself, not as Mr Dunn’s partner, but as a friend or flatmate who has lived with him for 19 years. Ms Cook’s son, who is 51, lives in a small detached flat.
There is no doubt that Ms Cook is the sole source of Mr Dunn’s support, but perhaps more importantly that he remains an important source of support for her.
Ms Cook works part-time as a co-ordinator of community housing in her local area, working 11 hours a week. She will retire in December 2025 and take up a full aged pension. She is currently on a part pension.
She has rental commitments, which she meets with her son’s assistance, and without payment from Mr Dunn. Mr Dunn does, however, contribute to food, power, and internet expenses. Ms Cook says that this is the only way she can get by.
Ms Cook suffers from fibromyalgia, chronic fatigue, and arthritis. She is, however, independently mobile and can drive and walk to her local supermarket.
Mr Dunn assists her with driving longer distances. He also cooks, carries out repairs, looks after the dog and mows the lawns. They both do the cleaning.
Ms Cook is able to drive the short distance to Macksville, a 25-minute or so drive, to attend her medical appointments. If she is required to attend medical appointments in Coffs Harbour, which she is, she can seek the assistance of a friend to drive or, alternatively, there is access to community transport for a fee.
There is also the likelihood that, without Mr Dunn, she could access home care support, and at the moment she does not wish to do so.
Ms Cook said that if Mr Dunn was incarcerated, she could not afford to live in the same house. However, she did not know how much her full pension was to be and said that if she needed extra money, her son would likely give it to her. She had not explored the possibility of finding a new “flatmate”.
Whenever a person is incarcerated, those who love and rely on them suffer hardship. That is a reason why detention is viewed as such a deterrent. In this case, the hardship that is asserted is not an exceptional circumstance so as to reduce materially an otherwise appropriate penalty. It is relevant in consideration of Mr Dunn’s subjective case, and I have taken it into account.
If the Court would have imposed a sentence of imprisonment for the offences if the special hearing had been an ordinary trial, the Court must nominate a limiting term that is the best estimate of the sentence that the Court would have imposed in the circumstances.
If the Court determines that it would not have imposed a sentence of imprisonment, the Court may impose any other penalty or make any order it might have imposed or made if the defendant had been found guilty of the offence in an ordinary trial of criminal proceedings.
In doing so, the Court must take into account that:
Because of Mr Dunn’s impairment, he may not be able to demonstrate mitigating factors for sentencing or make a guilty plea for the purposes of obtaining a sentencing discount, and
It may apply a discount of the kind that represents part or all of the sentencing discounts that are capable of being applied to a sentence because of those factors or a plea of guilty, a matter that I have done, and
It must take into account periods of the defendant’s custody that related to the offences.
It is submitted on behalf of Mr Dunn that if he were being sentenced after a trial, then his age, his dementia, and his very poor physical health when taken into account on sentence, a sentence that was not full-time custody and which reflected the time already spent in full-time custody would be open to the Court. Accordingly, it is submitted on his behalf that after the special hearing, it is now within the Court’s discretion not to impose a limiting term at this time, but rather refer Mr Dunn to the Tribunal while allowing him to return home, where he will be cared for.
I have had particular regard to Mr Dunn’s age, infirmity and incapacity as required in cases such as L**IU v R [2023] NSWCCA 30. Mr Dunn’s overall poor physical condition and his “continuous ill health” is considerable, particularly in respect of his cognitive decline. Any incarceration will, no doubt, be extremely difficult.
In Tsoumbanellis v R [2025] NSWCCA 107 it was held at [69], “The vast majority of cases concerning the sentencing of aged offenders involve a combination of age and ill-health. Nonetheless, advanced age of itself remains relevant”, and particularly so where there are the cognitive deficiencies I have described.
I have considered that there is additional hardship, if I was to impose a limiting term, that Mr Dunn being released at an age and likely in ill health will do so where there is no real expectation of a fulfilling life after release. However, the punishment must still reflect the crimes, and the seriousness of the offending behaviour is such that the offender has, in my view, forfeited the right to that expectation. He has lived a full life without punishment or a diminished reputation having committed serious offences.
It is important that Mr Dunn be held accountable for his crimes and that his conduct be denounced.
I have had regard, in particular, to two cases and I am indebted to Haesler SC DCJ, a very experienced criminal judge and one of my brothers, in that regard.
In R v Allen (a pseudonym) (No 2) [2024] NSWDC 300, the offender was 90 years old with dementia and other health problems. He was alleged to have committed a number of offences against two of his granddaughters, and his grand-stepson over an eight-year period. However, he was acquitted on six counts relating to the granddaughters and, in respect of the step-grandson, he committed only one count under s 66C(2) of the Crimes Act, an offence of sexual intercourse with a child then aged under 16, in or about 1989. The offender sucked his penis for a few minutes, and told him that he loved him. The step-grandson was aged somewhere between nine and eleven. The offender was in his late fifties. The maximum penalty, at that time, was ten years’ imprisonment. There was no offending since that time.
By the time of the hearing, the offender’s cognitive decline was so advanced that he could not understand what he was being punished for. In those circumstances, he could not personally be held accountable for his actions. He could not comprehend why he was being moved from his supported accommodation to a gaol.
Both parties agreed that a limiting term was not required and that a Community Correction Order could be imposed.
By contrast, in R v Antin (a pseudonym) (No 2) [2021] NSWDC 584, the offender faced penalty for four offences against two victims. He was also 90 years old, suffering dementia and other health problems. Three offences were charged pursuant to s 51M(2) of the Crimes Act, which at that time, carried a maximum penalty of ten years’ imprisonment, and a further count, an offence pursuant to s 66A of the Crimes Act, which carried a maximum penalty of 25 years. The offender was already in custody.
It was accepted in that case that, given the seriousness of the charges, options other than fixing limited terms were not available.
The first complainant was ten or eleven. Mr Antin, a neighbour, lured her inside his home. He committed one act of attempted anal intercourse, resulting in three separate counts.
The second complainant was Mr Antin’s granddaughter. In the context of other offending against her, she gave an account of the first and last incidents. The first incident occurred when she was about three. Mr Antin took her upstairs, exposed his penis and guided her to masturbate him. The last incident was where he had turned her face-over on a stool and had anal intercourse with her. He had done similar things about ten times before.
By the time of the hearing, Mr Antin did not know where he was or even that he was in Australia. The limiting term was effectively to last for the rest of his life. However, as his Honour stated at [36],
“It is not for this Court to impose an inappropriate sentence in order to give an ill or elderly offender hope of release before his death: GS v R [2016] NSWCCA 266 at 107.”
…
(2) If the court would have imposed a sentence of imprisonment for the offence if the special hearing had been an ordinary trial of criminal proceedings and the person had been fit to be tried for the offence, the court must nominate a term (a limiting term) that is the best estimate of the sentence that the court would have imposed on the defendant in those circumstances.
(3) Other penalties and orders If the court determines that it would not have imposed a sentence of imprisonment, the court may impose any other penalty or make any order it might have imposed or made if the defendant had been found guilty of the offence in an ordinary trial of criminal proceedings.
(4) The penalty or order is to be subject to appeal in the same manner as a penalty or order in an ordinary trial of criminal proceedings.
(5) Factors for consideration in determining penalty Without limiting subsection (2) or (3), in determining a limiting term or other penalty, the court—
(a) must take into account that, because of the defendant’s mental health impairment or cognitive impairment, or both, the person may not be able to demonstrate mitigating factors for sentencing or make a guilty plea for the purposes of obtaining a sentencing discount, and
(b) may apply a discount of a kind that represents part or all of the sentencing discounts that are capable of applying to a sentence because of those factors or a guilty plea, and
(c) must take into account periods of the defendant’s custody or detention before, during and after the special hearing that related to the offence.
…
In R**egina v Graham Edward Mailes [2004] NSWCCA 394, the New South Wales Court of Criminal Appeal held that the object of nominating a limiting term is “to ensure that [a person] is not detained in custody longer than the maximum the person could have been detained if so convicted following a proper trial.”
It equates to the head sentence or total sentence and not the non-parole period.
The Court is required, when determining a limiting term, to adopt and apply all of the statutory and common law principles of sentencing that apply to the sentencing of a person convicted of that offence.
Having regard to the objective gravity of the offending, applicable maximum penalties, subjective factors, the purpose of sentencing (apart from punishment per se where that punishment may not be entirely appreciated and other relevant statutory provisions if the special hearing had been an ordinary trial of criminal proceedings and the offender been fit to be tried for the offences), I would have held that the only appropriate sentence would be a lengthy term of imprisonment.
Accordingly, I must determine the length of any limiting term.
I have had regard to s 64 of the MHCIFP Act and the limiting term will not take place from today but at an earlier time, taking into account the period of Mr Dunn’s custody. It must be taken into account pursuant to s 63(5)(c) of the MHCIFP Act.
In this case, Mr Dunn was arrested on 14 September 2022 and bail refused until 8 November 2022. Accordingly, I have backdated any limiting term in respect of count 1 to start 56 days ago.
In respect of count 1, which carries a maximum penalty of imprisonment of seven years, I nominate a limiting term of 15 months to date from 22 September 2025 and expiring on 21 December 2026.
In respect of count 2, which carries a maximum penalty of imprisonment of two years, I nominate a limiting term of 12 months to date from 20 April 2026 and expiring on 19 April 2027.
In respect of count 3, which carries a maximum penalty of imprisonment of eight years, I nominate a limiting term of four years to date from 19 April 2026 and expiring 18 April 2030.
In respect of count 4, which carries a maximum penalty of imprisonment of eight years, I nominate a limiting term of four years to date from 17 April 2029 and expiring on 16 April 2033.
In respect of count 5 similarly, which carries a maximum penalty of imprisonment of eight years, I nominate a limiting term of four years to date from 15 April 2032 and expire on 14 April 2036.
In respect of count 6, which carries a maximum penalty of imprisonment of eight years, I nominate a limiting term of five years to date from 13 April 2035 and expiring on 12 April 2040.
I refer Mr Dunn to the Mental Health Review Tribunal and order that the Tribunal be notified of these Orders.
As to finding a place to serve that limiting term, in my view, the only appropriate exercise of the discretion is to detain Mr Dunn in a correctional centre.
There are no plans for Mr Dunn to enter into assisted living at this time and it is inappropriate that he remains living with Ms Cook, given the seriousness of the offending, the harm that he has done over a number of years and indeed, the attitude by Ms Cook that Mr Dunn remains a person of good character.
In any event, there is unlikely to be any further insight gained by Mr Dunn in the circumstances I have described. In short, to leave him in Ms Cook’s care would be to do nothing at all.
Mr Dunn is to be detained in a correctional centre, pending review by the Tribunal.
**********
R
Dunn [2025] NSWDC 519
(2013) 249 CLR 571