R v Duong

Facts derived from jury verdicts

1. The victim, JG was born in 1986. The offender is the stepfather and biological uncle of JG. After turning 9 years of age the offender commenced what the victim described as a kissing game with her. This involved the victim picking a part of her body which he would kiss. Count 1 on the Indictment involved an occasion during this kissing game when the offender kissed the victim on the lips and inserted his tongue into her mouth.
2. Count 2 involved an occasion where the victim during this game chose her breast and the offender lifted her top and sucked on her nipples.
3. Count 3 involved an occasion where the offender touched the victim's vagina underneath her clothing with his fingers. Following that incident the offender said to the victim "Don't tell your mum about this because if you do it would really upset her."
4. Count 4 occurred when the victim was in the same bed as her younger sister who was asleep. On this occasion the offender positioned the victim on top of himself and guided her so that her vagina was situated on his penis. He then had penile-vaginal sexual intercourse with the victim. The sexual intercourse lasted what felt to the victim a long time following which the offender said to her "How do you know about sex?" and she said "I don't know. I don't know what's happening."
5. Count 5 concerned an occasion when the victim's mother was hanging washing outside the home and the offender came into the victim's bedroom and had her perform fellatio on him. That involved her sucking on his penis. The conduct stopped when they heard the victim's mother come into the home.
6. On an occasion when the victim was 10 her mother was working night shift at a nursing home and the victim was in her parent's bed. Count 6 involved an occasion when the offender digitally penetrated the victim's vagina while kissing her. Count 7 occurred on the same occasion and involved the offender rubbing his penis between the victim's breasts until he ejaculated.
7. Counts 8, 9 and 10 all occurred during one incident when the victim was aged between 12 and 13. The victim was in her parent's bed at night when her mother was at work. Count 8 involved the offender licking the victim's vagina. Count 9 involved the offender licking the victim's anus. Count 10 involved the offender digitally penetrating the victim's vagina.
8. Count 11 concerned another occasion when the victim performed fellatio on the offender, and he ejaculated into her mouth. Following that the victim went to the bathroom to spit out the semen and her mother came into the bathroom and asked, "What are you doing?". The victim told her mother that she was just using the toilet then returned to her sister's bedroom where the offender was lying on the bed. The offender told the victim that her mother was becoming suspicious, and they should have a break.
9. Count 12 involved the offender maintaining an unlawful sexual relationship with the victim between 31 December 1999 and 14 July 2002, first at their home in Miller in New South Wales and from September 2000 at Carrum Downs in Victoria. During this period the evidence established that the offender had sexual intercourse with the victim at times on a weekly or fortnightly basis and that involved kissing, touching, sucking her breasts, digital penetration, fellatio, cunnilingus and sexual intercourse.
10. By its verdicts the jury clearly found the victim to be a credible and reliable witness, and rejected the offender's denials of any sexual misconduct towards the victim.

The sentence hearing

1. The sentence hearing took place on 30 August 2024. Exhibit A was the Crown sentence summary which set out the offences together with the prescribed maximum penalties. The offender had no previous convictions and Exhibit A included a Sentencing Assessment Report ("SAR") under the hand of Ms C Smithers dated 23 August 2024. Under the heading "Attitudes" the author noted that the offender denied and disputed the facts and refused to engage in further discussion of his offending behaviour. He apportioned blame to the victim suggesting the index offences were fabricated. He claimed the victim was upset with him due to his relationship with her mother and "being hard on her homework". He displayed no insight into his offending behaviour.
2. The author described the offender as being reluctant and often evasive during discussion of his offending behaviour. He was assessed as below average risk on the Static-99R and was ineligible for sex offender programs. Notwithstanding his denial of the offences he verbalised a willingness and ability to undertake intervention. This was described as appearing to be superficial. Ultimately, he was assessed as a medium-low risk of reoffending.
3. Attached to the SAR was a case note report from Ms E Ramsey, psychologist dated 21 August 2024. No interview was conducted for the purpose of the report which was based on file information and liaison with Community Services staff only. The report expanded on the risk assessment stating that the Static-99R does not take into account factors relevant to the individual that are considered dynamic or changeable in nature and as such is not considered to be a comprehensive assessment of the individual risk of recidivism. The author stated that the offender appears to have a very low density of criminogenic needs relevant to other male sexual offenders. Areas of dynamic risk appeared limited to possible deviant sexual interest however notably he reported stability in all areas of his life including a long-term relationship, long-term employment, stable relationships and routine and no substance abuse issues. The author opined that should he receive a custodial sentence, he will be assessed for his eligibility and suitability for adjunct programs relevant to managing his risk of reoffending. The report also noted the offender had self-harmed when he first entered custody by engaging in "headbanging", for which he was managed in hospital.
4. Exhibit B was the statement of agreed facts which now forms Annexure A to these remarks. Exhibit C was the victim impact statement of JG which was read in court via audio-visual link. The victim impact statement is referred to below.
5. The offender tendered a letter from his son, Charlie Duong dated 9 August 2024 which became Exhibit 1. That letter set out that the offender played a crucial role in the family home being the breadwinner for his wife and son. The offender's conviction had impacted upon his wife's physical and mental health requiring his son to support her. He described himself experiencing "an overwhelming amount of sadness and anxiety" and feeling a void without the offender. As the family resided in Victoria, they were unable to visit the offender in-person because it was simply too expensive. He stated that the offender is "no longer a risk to society and will not be a recidivist".

The Crown submissions

1. The Crown relied on a thorough and detailed written outline of submissions in which it set out well established principles of assessing the objective gravity of child sexual offences which are not in dispute. The Crown submitted the following were aggravating factors:- 1. The offence was committed in the home of the victim, pursuant to s21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA"). 2. The offender abused a position of trust or authority in relation to the victim, pursuant to s21A(2)(k) if the CSPA. The Crown characterised this as a grave breach of trust and a deliberate exploitation of the authority of the offender over the victim as her stepfather. This was relied on by the Crown as an aggravating factor pursuant to s21A(2)(k) for all offences except Counts 5,6,8,10 and 11.
2. The Crown then provided the following chart outlining its submissions regarding the objective gravity of the offending and the reasons therefore. Offence Submission Reasons for the submission • The victim was 9 years of age, in an offence provision that contemplates a range of ages up to 10. • The offender was 28 years. There was an age gap of 19 years. Count 1 s61M(2) Low-range • Given the age of the victim, there must have been a significant difference in body size and weight, which would have exacerbated the power differential. • Whilst playing a kissing game, the offender kissed the victim's lips and inserted his tongue into her mouth (T47.15, T50.46). • Also relevant, is the fact that it occurred in the home of the victim and in a domestic context. The offence involved a breach of trust and authority, was committed in a location (the victim's bedroom) where the victim ought to feel safe. • The offending was brazen, and occurred in the presence of the victim's sister MN and whilst the victims' mother NTN was elsewhere within the home. • The victim was 9 years of age, in an offence provision that contemplates a range of ages up to 10. Count 2 s61M(2) Below mid- range • The offender was 28 years. There was an age gap of 19 years. • Given the age of the victim, there must have been a significant difference in body size and weight, which would have exacerbated the power differential. • a. Whilst playing a kissing game, the offender sucked on the victim's nipples (T50.3). The offence provision encompasses touching another person on any part of the body in circumstances where a reasonable person would consider the touching to be sexual, either over the top or underneath clothing. • Also relevant, is the fact that it occurred in the home of the victim and in a domestic context. The offence involved a breach of trust and authority, was committed in a location (the victim's bedroom) where the victim ought to feel safe. • The offending was brazen, and occurred in the presence of the victim's sister MN and whilst the victims' mother NTN was elsewhere within the home. • The victim was 9 years of age, in an offence provision that contemplates a range of ages up to 10. • The offender was 28 years. There was an age gap of 19 years. • Given the age of the victim, there must have been a significant difference in body size and weight, which would have exacerbated the power differential. Count 3 s61M(2) Mid-range • Whilst playing a kissing game, the offender touched the • victim's vagina with his fingers (T48.27), underneath her clothing (T49.49). The offence involved skin on skin touching of the victim's genitalia, noting the provision encompasses touching another person on any part of the body in circumstances where a reasonable person would consider the touching to be sexual, either over the top or underneath clothing. • Also relevant, is the fact that it occurred in the home of the victim and in a domestic context. The offence involved a breach of trust and authority, was committed in a location (the victim's bedroom) where the victim ought to feel safe. • The offending was brazen, and occurred in the presence of the victim's sister MN and whilst the victims' mother NTN was elsewhere within the home. • After the assault the offender said "don't tell your mum about this, because if you do, it would really upset her" (T51.38-39). In her evidence the victim said, "even though she would've been the only person I could turn to, I just didn't want to upset her, or to cause drama between my parents" (T51.40-41) • The victim was 9 years of age, in an offence provision that contemplates a range of ages up to 10. • The offender was 28 years. There was an age gap of 19 years. Count 4 s66A Mid-range • Given the age of the victim, there must have been a significant difference in body size and weight, which would have exacerbated the power differential. • The offender had unprotected (T150.43) penile vaginal intercourse with the victim (T52.2). Noting the provision encompasses all kinds of sexual intercourse. • The victim recalls the sexual intercourse "felt like a long time… I don't know, maybe ten minutes" (T52.45) • Also relevant, is the fact that it occurred in the home of the victim and in a domestic context. The offence involved a breach of trust and authority, was committed in a location (the victim's bedroom) where the victim ought to feel safe. • The offending was brazen, and occurred in the presence of the victim's sister MN and whilst the victims' mother NTN was elsewhere within the home. • The victim was 10 years of age, in an offence provision that contemplates a range of ages from 10 to 15. • There was an age gap of 19 years. • Given the age of the victim, there must have been a significant difference in body size and weight, which would have exacerbated the power differential. Count 5 s66C(2) Mid-range • Whilst the victim's mother NTN was hanging washing outside, the offender pulled down his pants and pulled the victim towards him and had her perform fellatio on him (T54.42-50). • The offence ended when the victim's mother came back inside. • Occurred in the context of weekly sexual abuse, the victim described "I kind of became his sexual partner. He would say that I'm a special child. Yeah, it was - it was kind of weird because he was my dad, but also, I was a sexual partner for him" (T55.10-12). • It occurred in the home of the victim and in a domestic context. The offence involved a breach of trust and authority (noting this is an element of the offence), was committed in the victim's own home. • The offending was brazen, and occurred during the day, whilst the victims' mother NTN has stepped outside momentarily. • The victim was 11-12 years of age, in an offence provision that contemplates a range of ages from 10 to 15. • There was an age gap of 19 years. Count 6 s66C(2) Mid-range • Given the age of the victim, there must have been a significant difference in body size and weight, which would have exacerbated the power differential. • One evening whilst her mother NTN was at work, the victim was in the offender's bed. The offender inserted his fingers inside the victim's vagina (T65.37). • Occurred in the context of ongoing sexual abuse. • It occurred in the home of the victim and in a domestic context. The offence involved a breach of trust and authority (noting this is an element of the offence), was committed in the victim's own home. • Occurred immediately following Count 6. • After inserting his fingers in the victim's vagina, the offender got on top of the victim, pressed the victim's breasts together and rubbed his penis in and out of her breasts (T56.28-32). Count 7 • The assault ended when the offender ejaculated on the victim's breasts (56.36). s61M(1) Above mid-range • The offence involved skin on skin rubbing of the offender's penis on the victim's breasts to the point of ejaculation. Noting the provision encompasses touching another person on any part of the body in circumstances where a reasonable person would consider the touching to be sexual, either over the top or underneath clothing. • The victim was 11-12 years of age, in an offence provision that contemplates a range of ages under the age of 16. • Occurred in the context of ongoing sexual abuse. • It occurred in the home of the victim and in a domestic context. The offence involved a breach of trust and authority, was committed in the victim's own home. • The victim was 12-13 years of age, in an offence provision that contemplates a range of ages from 10 to 15. • There was an age gap of 19 years. Count 8 s66C(2) Low-range • Given the age of the victim, there must have been a significant difference in body size and weight, which would have exacerbated the power differential. • One evening whilst her mother NTN was at work, the victim on the edge of the bed and the offender was kneeling at the edge of the bed. The offender was licking the victim's vagina (T58.7-27). • Occurred in the context of ongoing sexual abuse. • It occurred in the home of the victim and in a domestic context. The offence involved a breach of trust and authority (noting this is an element of the offence), was committed in the victim's own home. • Occurred immediately following Count 8 • After licking the victim's vagina, the offender licked the victim's anus (T58.7-27). Noting the provision encompasses touching another person on any part of the body in circumstances where a reasonable person would consider the touching to be sexual, either over the top or underneath clothing. Count 9 s61M(1) Above mid- range • The victim was 12-13 years of age, in an offence provision that contemplates a range of ages up to 16. • There was an age gap of 19 years. • Occurred in the context of ongoing sexual abuse. • It occurred in the home of the victim and in a domestic context. The offence involved a breach of trust and authority, was committed in the victim's own home. • Occurred at the same time as Count 9 • After licking the victim's vagina, at the same time as licking the victim's anus, the offender inserted his fingers inside the victim's vagina and "fingered her" (T58.7-27). Count 10 s66C(2) Mid-range • The victim was 12-13 years of age, in an offence provision that contemplates a range of ages from 10 to 15. • There was an age gap of 19 years. • Occurred in the context of ongoing sexual abuse. • It occurred in the home of the victim and in a domestic context. The offence involved a breach of trust and authority (noting this is an element of the offence), was committed in the victim's own home. • The victim was 12-13 years of age, in an offence provision that contemplates a range of ages from 10 to 15. • There was an age gap of 19 years. Count 11 s66C(2) Above mid- range • The offender was lying on the victim's sister MN's bed, whilst MN was asleep (T61.1). The victim performed fellatio on the offender to the point of ejaculation (T59.48-50). The victim had to spit the semen into the sink (T59.49). • The offending was brazen, and occurred in the presence of the victim's sister MN , who was at that time 10-11 years old, and whilst the victims' mother NTN was elsewhere within the home. • Occurred in the context of ongoing sexual abuse. • It occurred in the home of the victim and in a domestic context. The offence involved a breach of trust and authority (noting this is an element of the offence), was committed in the victim's own home.

1. In relation to Count 12, the offence pursuant to s66EA of the CA, the Crown submitted that the Court was required to give effect to both s25AA by taking into account, as a yardstick, the lower maximum penalties for the individual offences that applied at the time of offending, but also not taking into account any sentencing patterns that applied at the time of the offending. The Crown submitted that as a result of that approach the offending fell at the upper end of the earlier maximum penalties however the sentence is not limited by those previous maximum penalties and the Crown noted that the maximum penalty is life imprisonment.
2. The Crown referred to recent authorities of the Court of Criminal Appeal in MK v R [2024] NSWCCA 127, Massaquoi v R [2024] NSWCCA 125 and RA v R [2024] NSWCCA 149 as establishing the correct approach to sentencing. In RA v R [2024] NSWCCA 149 at [102] Wilson J said as follows:- "Although what follows is not intended to be an exhaustive enumeration of all relevant features to be considered by a sentencing court, the gravity of any particular offence falls to be determined by: 1. The length of the period over which the unlawful sexual relationship was maintained; 2. The nature of the relationship in which the unlawful sexual acts were committed, such as a parental relationship, or that between a coach and player; 3. Whether the relationship placed the offender in a position of authority over or trust towards the child; 4. The age of the child at the commencement, and during the period, of the unlawful sexual relationship, and how far below 16 years of age the child was; 5. The age differential between offender and child; 6. The extent of the commission of unlawful sexual acts against the child above the statutory threshold of two; 7. The frequency with which unlawful sexual acts were committed; 8. The nature of the unlawful sexual acts that were committed within the period averred; and 9. Where the unlawful sexual relationship existed wholly or partly before the commencement of the relevant amendments, being 2018, the maximum penalties applicable to particular unlawful sexual acts committed within the period of the relationship."
3. The Crown then submitted, applying those principles to the present case, as follows:- "a. The unlawful sexual relationship commenced in 1995 and concluded 7 years later in 2002, noting however that Count 12 is particularised as commencing 31 December 1999 and concluding 2 and a half years later on 14 July 2002. It is important not to double count the conduct that occurred before the commencement of Count 12 (ie Counts 1-11); b. The offender was the victim's stepfather, and biological uncle. He commenced a relationship and moved in with the victim's mother NTN when the victim was 4 years old. The victim called him "dad" (T45.15). c. As her stepfather the offender was in both a position of authority and trust. The victim's mother often left the victim and her siblings in the responsibility and care of the offender. d. Between 31 December 1999 and 14 July 2002, the victim was 13-15 years of age. e. There was an age differential of 19 years. The victim gave evidence that during the period of Count 12, the sexual activity was occurring once or twice a week (T69.1, T97.40), and later once a week or once a fortnight (T79.33, T150.39). The dates for Count 12 span a 132-week period. With this in mind, there would have been between 66 and 264 separate instances of sexual intercourse. f. As above, the sexual activity was occurring between once a week and once a fortnight during the relevant period (T69.1, T97.40, T79.33, T150.39). g. The victim gave evidence that during this period: i. The offender and the victim would watch adult movies late a night on the offender's bed, and afterwards, they would have penile vaginal intercourse (T66.28) ii. The offender purchased a Dolly magazine for the victim in exchange for her performing fellatio on him to the point of ejaculation (T66.41-46) iii.The offender digitally penetrated the victim whilst he was having sexual intercourse with the victim's mother (T67.20-37). iv. The sexual activity was occurring once or twice a week (T69.1), the victim describing it "it was pretty standard. Like, he would be on top of me most of the time. We'd probably do foreplay before having sex" (T69.4-5). She explained the foreplay would involve "Kissing, touching, squeezing breasts, sucking the breasts, fingering, oral sex. Like, mouth, penis; or mouth, vagina" (T69.8-9) and the sex would involve "he would thrust his penis in and out of my vagina until he ejaculates" (T69.13). v. The offender never used a condom (T150.43). There was a risk of pregnancy (T111.18). vi. The sex continued after they moved to Victoria in September 2000 (T72.33-36). vii. One time the victim's Uncle walked in on the offender and the victim cuddling, afterwards they had sex (T148.25) viii. The sex continued after the victim's extended family moved out and was occurring once a week or once a fortnight (T79.33). ix. After the victim complained to Aunty PN about the abuse, the sexual activity continued (T84.19). h. During the period of offending the maximum penalty were as follows: i. Sexual intercourse-person 10 & under 16-under authority- SI - 10 years imprisonment ii. Agg indecent assault- victim under the age of 16 years-T1 - 7 years imprisonment."
4. The Crown submitted that the objective gravity for the offences is not assessed by what an offender does not do and by the absence of features which would elevate the offence into a different category of seriousness, relying on Bamblett v R [2013] NSWCCA 161 at [29]-[30]; Tindall v R [2019] NSWCCA 136.
5. The Crown submitted that the abuse continued after the victim turned 16 however the Court must be cautious in assessing the evidence of what occurred in Victoria for which the offender is not facing any charges.
6. Having regard to the position of trust and authority that the offender abused, the nature and number of the unlawful sexual acts, the fact that the sexual assaults were not isolated and that it all occurred in the victim's home meant that the offending fell within the mid-range of objective seriousness for offences of this kind.
7. The Crown noted that the offender is presently 58 years old and was aged between 29 and 36 years at the time of the offending. Whilst he had no criminal history, good character is of less significance in cases of repeated sexual offending against children, relying on R v PGM [2008] NSWCCA 172;(2008) 187 A Crim R 152. The Crown referred to the SAR and to the author's note that the offender displayed no remorse and no insight into his offending. With respect to Exhibit 1 the Crown submitted that the impact on the offender's family as set out therein did not demonstrate exceptional hardship.
8. The Crown submitted that the delay in sentencing for offences that occurred over 20 years ago did not constitute a mitigating factor. The victim had not disclosed the offending to police until 2018 during which the offender had enjoyed the benefit of a life free from opprobrium for his offending conduct. Further it was common for there to be delay in children complaining of sexual abuse, relying on Young (a pseudonym) v R [2022] NSWCCA 111;(2022) 298 A Crim R 468. The Crown also relied on Greenaway v R [2021] NSWCCA 253 per Macfarlan JA at [123]-[124] concerning the exploitation of youth and the vulnerability of victims who are deterred from complaining about their sexual abuse.
9. The Crown referred to the principle of totality in sentencing so as to avoid a crushing sentence, relying on R v MAK; R v MSK [2006] NSWCCA 381;(2006) 167 A Crim R 159 at [17]-[18]. There the Court noted that in many cases of multiple offending the offender may not be entitled to the element of mercy entailed in adopting concurrency in sentencing and that in applying the totality principle public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending.
10. The Crown submitted that special circumstances were not made out, and the application of the statutory ratio in this case will allow for a lengthy period of supervised parole.
11. In conclusion the Crown submitted that the offences necessitate a lengthy sentence of imprisonment relying on EG v R [2015] NSWCCA 21 at [42]. The Crown submitted that general deterrence, denunciation and protection of the community must be given effect in a case which requires a clear message to be sent to the community that those who would sexually abuse children intentionally and repeatedly will receive significant punishment.
12. In her oral submissions the Crown referred to the victim impact statement as clearly describing the significant impact the offender's conduct had inflicted on the victim's life. The offender had described her as a "special child" and exploited her innocence, thereby robbing her of her childhood. The victim had suffered depression and manic episodes and attempted suicide on multiple occasions. The offending also had a profound impact on the victim's relationships including destroying her family relationships. The Crown submitted the Courts have long given recognition to how child sexual offending had impacted upon victims and the intense, sometimes lifelong, suffering it causes.
13. The Crown referred a number of comparative cases including GP v R [2021] NSWCCA 180, Towse v R [2022] NSWCCA 252, Mills v R [2017] NSWCCA 87 and DB v R [2024] NSWCCA 18. The Crown submitted that in this case there was one offence pursuant to s66EA however there were eleven other offences which commenced when the victim was less than 10 years of age. It was not isolated offending and was carried out in the context of violence in the family home including one offence of sexual intercourse in the presence of the victim's mother. The Crown submitted that a lengthy custodial sentence was warranted in the circumstances as this was a very serious example of child sexual offending and involved a significant breach of trust.

The offender's submissions

1. The solicitor for the offender also relied on a thorough and detailed written outline of submissions in which he summarised the offending in each of the 12 Counts. In respect to the objective seriousness of the offending in Counts 1, 2 and 3 it was noted that the victim was near the top of the relevant age range of 10 years. It was submitted that the offending in Counts 1 and 2 was objectively in the low range of objective seriousness. Count 3 was clearly more serious offending and it was submitted, should be assessed as being in the mid-range of objective seriousness for an offence of its kind.
2. It was submitted the objective seriousness of Count 4 which involved penile-vaginal intercourse was in the mid-range of objective seriousness for that offence and Count 5, fellatio, should be assessed at the low end of the mid-range of objective seriousness. Count 6, also a case of penile-vaginal sex, was submitted to be in the mid-range of objective seriousness.
3. Count 7 was a count of indecent assault constituted by the offender sliding his penis between the breasts of the victim. It was submitted that this would be at the higher end of the mid-range of objective seriousness for offences of indecent assault of a minor. Counts 8, 9 and 10 were submitted to be within the mid-range of objective seriousness. Counts 8 and 10 at the low end of that mid-range and Count 9 which involved fingering of the victim's vagina was conceded to be at the higher end of the mid-range.
4. In relation to Count 11, in which the victim performed fellatio on the offender, it was submitted that the fact of ejaculation must make the offending more serious, and, on that basis, it was submitted to be in the mid-range of objective seriousness.
5. It was submitted that Count 12, the offence of maintain an unlawful relationship with a child was the most serious offence. It was noted that the offending period covered a period where the victim was towards the upper end of the age range for such an offence and that the offending ceased other than because of the arrest of the offender. The offender conceded that the Court would find that the sexual interference was regular and on more occasions than were specifically particularised in her evidence. It was submitted that the Court would sentence the offender in accordance with the matters referred to in Burr v R [2020] NSWCCA 282 which included the following:- 1. "the number of "sexual offences" which were committed on separate occasions by the offender against the victim" - it was conceded that the Court would find that there were many such occasions. 2. "the nature of the sexual offences committed by the offender against the victim" - the offences, whilst being axiomatically serious, are not particularly elevated when measured against the calendar of available offending. Notably absent were violence, threats, injury, or any sexual act of a particularly demeaning nature. 3. "the age of the victim at the time of the ingredient offences" - the child was, as noted, 13 to 16 years of age, therefore being towards the higher end of the range. 4. "the period of time during which the ingredient offences were committed against the victim" - the period was over some years. 5. "the age of the offender at the time of the commission of the ingredient offences against the victim and the age differential between the offender and the victim during the relevant period" - the age difference was not particularly small or particularly large such that this would have a material effect on the sentence imposed. 6. "the context in which the offender had access to the victim to commit the ingredient offences" - the child was the offender's step-daughter.
6. Measuring the conduct here against the available breadth of conduct often captured by the section, the offender submitted the Court would consider this offending fell within the low end of the mid-range for an offence pursuant to s66EA.
7. The offender conceded that the jury must have generally accepted the victim's evidence and that the offences constituted very serious sexual offending against the offender's stepdaughter, a person in respect of whom he had a position of trust. However it was submitted that the vast majority of offences involving sexual interference with a child involve a breach of trust to at least some extent. It was further conceded that the conduct formed a pattern of conduct by the offender towards the victim who was vulnerable.
8. The solicitor for the offender noted the offender had no previous record of convictions and that a significant amount of time has passed since the offending conduct, namely, over 20 years. Notwithstanding that the offending was not isolated, the lack of offending before and after the relevant time periods would give the Court some comfort as to the risk of reoffending. This was supported by the SAR which assessed him as a medium-low risk of reoffending. The case note report had also assessed the offender as having "a very low density of criminogenic needs relative to other male sexual offenders". It was noted that he had reported stability in all areas of his life including relationships, employment and had no substance abuse issues. It was submitted the offender appeared to have lived a comparatively pro-social life having maintained a long term relationship with his wife that still endured.
9. The offender submitted the Court would moderate the sentence to be imposed having regard to the fact that the offender's wife and two natural children do not reside in New South Wales which limits the opportunities for in-person visits. Given the offender had limited English, this would cause significant isolation and render the offender's time in custody more onerous.
10. The offender submitted that plainly there must be some accumulation in sentence however given the appropriate application of the principle of totality it was submitted the Court could comfortably meet the purposes of sentencing by accumulating to a limited extent on the sentence imposed for Count 12.
11. The offender submitted that a finding of special circumstances should be made based on the offender's first time in custody and his poor mental health together with his alienation from his family as a result of being incarcerated interstate and his limited English ability.
12. In his oral submissions the solicitor for the offender did not cavil with the facts as proposed by the Crown and conceded that the jury must have generally accepted the victim's evidence. In relation to the victim impact statement it was submitted that no weight should be placed on the uncharged acts referred to therein.
13. The offender rehearsed his submissions concerning his risk of recidivism as outlined in the SAR and the case note report. It was submitted that having regard to the lack of criminogenic factors and his generally pro-social life this offender was unlikely to re-offend. In fact he had demonstrated his ability to lead a pro-social life in the 20 years since the offending conduct.
14. The offender conceded that he should not have any benefit for the delay in prosecution and sentencing however in terms of accumulation it was submitted the sentences for Counts 1 to 11 could have been brought within Count 12 and the Court should be cautious not to double count to arrive at an excessive sentence. It was submitted the maximum penalty prescribed for Count 12 meant that a lengthy sentence was called for in respect of that offending conduct.

Determination

1. Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. In coming to an assessment of the objective seriousness of the offending in each of the 12 Counts on the Indictment, I note there is little distinction between the submissions made on behalf of the Crown and the offender. I therefore assess the objective seriousness of each of the offences as follows:-

• Count 1 which involved the offender kissing the victim on the lips and inserting his tongue into her mouth, the offending fell within the low range of objective seriousness for an offence pursuant to s61M(2) of the CA.
• Count 2 involved an occasion where the offender lifted the victim's top and sucked on her nipples. This fell within the low range of objective seriousness for an offence pursuant to s61M(2) of the CA.
• Count 3 involved the offender touching the victim's vagina underneath her clothing with his fingers following which he said to the victim "Don't tell your mum about this because if you do it would really upset her." This fell within the mid-range of objective seriousness for an offence pursuant to s61M(2) of the CA.
• Count 4 involved the offender positioning the victim on top of himself and having penile-vaginal sexual intercourse with her. The victim was 9 years of age at the time and the offending fell within the mid-range for an offence pursuant to s66A of the CA.
• Count 5 concerned the offender having the victim perform fellatio on him while her mother was hanging washing outside the home. This offending was objectively serious falling within the mid-range of offending for an offence pursuant to s66C(2) of the CA but towards the lower end of the mid-range. The offending ceased when the victim's mother came back into the home.
• Count 6 involved the offender digitally penetrating the victim's vagina while kissing her when in her parent's bed. This offending fell within the mid-range of objective seriousness pursuant to s66C(2) of the CA.
• Count 7 occurred on the same occasion and involved the offender rubbing his penis between the victim's breasts until he ejaculated. This offending fell above the mid-range for an offence pursuant to s61M(2) of the CA.
• Count 8 involved the offender licking the complainant's vagina. The offending fell within the low range of an offence pursuant to s66C(2) of the CA but in the upper part of the low range.
• Count 9 involved the offender licking the victim's anus. The offending objectively fell within the mid-range for an offence pursuant to s61M(1) of the CA and towards the top of the mid-range.
• Count 10 involved the offender digitally penetrating the victim's vagina. The offending fell within the mid-range for an offence pursuant to s66C(2) of the CA.
• Count 11 concerned the offender having the victim perform fellatio on him and ejaculating into her mouth. This was objectively serious offending that fell within the mid-range for an offence pursuant to s66C(2) of the CA.

1. In assessing the gravity of the offending Count 12, the offence of maintaining an unlawful sexual relationship with the victim, I take into account the following matters adumbrated by Wilson J in RA v R, supra, as set out in [22] above:- 1. The unlawful sexual relationship commenced on 31 December 1999 and concluded 2 ½ years later on 14 July 2002. 2. The offender was the victim's stepfather and biological uncle who had commenced a relationship with the victim's mother when the victim was 4 years of age. The victim called him "dad". 3. As her stepfather the offender was in both a position of authority and trust. The victim was often left in the responsibility and care of the offender by her mother. 4. Throughout the unlawful relationship the victim was aged between 13 and 15. 5. The age differential between the offender and victim was 19 years. 6. Sexual activity occurred throughout the unlawful relationship at first one or twice a week and later once a week or once a fortnight. Given the date span, a 132-week period there would have been over 200 separate instances of sexual intercourse.
2. The unlawful sexual acts during the period included penile-vaginal intercourse, fellatio, digital penetration, kissing, touching, squeezing and sucking the victim's breasts, cunnilingus and numerous occasions of penile-vaginal intercourse ending in ejaculation. The offender never used a condom giving rise to the risk of pregnancy and sexually transmitted diseases.
3. Having regard to the position of trust and authority that the offender abused, the nature and number of unlawful sexual acts, the fact that they were not isolated and that they all occurred in the victim's home leads me to conclude that the offending fell within the mid-range of objective seriousness for offences pursuant to s66EA of the CA and at the upper end of that mid-range.
4. Given that the index offences commenced when the victim was 9 years of age and continued until she was almost 16 years of age the offending constituted serious and reprehensible criminal conduct for which the offender was highly morally culpable. I find that the offending also involved the following aggravating factors:- 1. All of the offences were committed in the home of the victim pursuant to s21A(2)(eb) of the CSPA; and 2. In respect of all of the offences except for Counts 5, 6, 8, 10 and 11 the offender abused a position of trust or authority in relation to the victim, pursuant to s21A(2)(k). I have however been mindful not to double count a breach of trust or authority where that may be inferred as a result of the relationship between the offender and victim.
5. Notwithstanding that the offender had no criminal history prior this offending which commenced when he was 29 years of age, I accept that character is of less significance in cases of repeated sexual offending against children. Further the offender has displayed no remorse for his offending conduct, and I accept the opinion expressed by the author of the SAR that he has no insight into his offending conduct.
6. I accept the Crown submission that the delay in sentencing for these offences which occurred over 20 years ago does not constitute a mitigating factor in the circumstances. The victim had not disclosed the offending until 2018 during which time the offender enjoyed the benefit of a life free from opprobrium for his offending conduct. It was also clear that there were family influences here which deterred the victim from disclosing the offender's sexual misconduct.

Orders

1. You are convicted of Counts 1 to 12 on the Indictment. 1. I sentence you by way of an aggregate sentence pursuant to s53A of the CSPA to 20 years imprisonment.
2. The non-parole period will be 12 years imprisonment commencing on 28 June 2024 and expiring on 27 June 2036.
3. The balance of term will be a period of 8 years expiring on 27 June 2044.
4. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence. Annexure A - Agreed facts (822619, pdf)

Amendments 22 January 2025 - Formatting only. 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: 22 January 2025