R v Edwards

District Court of NSW|2024-08-08

JUDGMENT

Richard John Edwards appears for sentence following his entering of pleas of Guilty with respect to four counts of historical child sexual assault. Each of the offences was committed on the same victim in the period between January 1994 and December 1995 when she was between the ages of 3 and 5.
Each offence has been charged pursuant to s 61M(2) of the Crimes Act 1900, alleging an indecent assault on a child under the age of 10 years. The applicable maximum penalty is 10 years imprisonment with respect to each offence. There were no statutory non-parole periods at the time of the offending.
There is a statutory prohibition against the identification of a child victim of sexual offending. That prohibition extends to the name of any such victim and to any evidence which may tend to identify the victim.
Whilst I will use relevant names in delivering my Remarks, the published version of this judgment will use pseudonyms and redactions in order to comply with the statutory prohibition.

OBJECTIVE SERIOUSNESS

A determination of the objective seriousness requires a consideration of the facts, matters and circumstances of the offending: see FL v R [2020] NSWCCA 114 at [59] to [60].
The offender was in a familial position which enabled him to have access to the children, including the present victim and her cousin, each of whom were distant relatives of his. Some of the offending would appear to have taken place in the presence of the other young victim. Both the offender's position in the family and his perceived character at the time allowed him to be in the situation where the offending could take place.
Some limited weight of his ability to assert some level of authority over the children, and specifically the present victim, is a relevant aggravating factor. Similarly, the offending on a number of occasions took place at the home of the victim's grandmother, which is an aggravating factor.
Count 1, the Guava Tree incident, was largely spontaneous and opportunistic. The offending did not involve any physical force beyond that intrinsic to the offence. The disparity between the offender's age and the age of his child victim is a relevant factor. It is to be noted that the offence did not involve skin on skin contact and involved rubbing the area of the vagina on the outside of clothing. The invocation to not tell anyone is also a relevant factor. Count 1 in my view falls below the mid-range for offences of this kind.
Count 2 relating to the kids chair similarly occurred at the home of the victim's grandmother. Again the offence was largely spontaneous and opportunistic. It was aggravated to some extent because it involved a breach of the trust implicit in the offender's position within the family. This offence did involve skin to skin contact and involved rubbing of the offender's penis on the victim's vagina. This offending falls within the mid-range.
Count 3 was the bath episode. It similarly occurred at the grandmother's home where the victim and her cousin were entitled to feel safe. The offence clearly involved the proximity of a second child, namely the victim's cousin, Barbara. This is a relevant factor of aggravation. The offence involved skin to skin contact and the rubbing of the child's vagina with the offender's hand. The period of the offending would appear to have been relatively brief and was again largely spontaneous and opportunistic. In my view, it falls just below the mid-range for such offending.
Count 4 was the trailer incident. It involved the same breach of trust of the offender's familial position. It was aggravated because it occurred at the victim's home. Although it did not involve skin to skin contact, he rubbed the area of her vagina on the outside of her clothes and also rubbed his penis in the area of her vagina through clothing. The offender endeavoured to reduce the risk of his actions being detected by telling the victim to be quiet. In my view, this offending fell within the mid-range.

SUBJECTIVE CIRCUMSTANCES

The offender did not give evidence in the sentence proceedings.
A substantial quantity of written material has been tendered which deals with his criminal history and custodial background together with psychological assessments prepared for the present proceedings and also for earlier legal proceedings.
A psychological report from Dr Dornan was the subject of the forensic psychologist being made available for cross-examination. I will make reference to that cross-examination later in these Remarks.
The offender was born to Indigenous parents in Bourke. In broad terms, he had a typically disadvantaged upbringing. His parents separated when he was very young and his mother re-partnered on a number of occasions. He had numerous siblings or half siblings. He was subjected to a level of violence from various of his stepfathers and was "in and out" of boys' homes. Details of the relevant Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571 factors have been referred to in various of the sentence proceedings to which I will refer in due course. The Crown acknowledges the relevance of Bugmy factors and it is unnecessary to go into more specific detail in these remarks.
Included in the Defence Tender Bundle is a handwritten note and a typed letter from the offender. The handwritten note sets out apologies from the offender himself to his victim, Veronica Lamb. In his handwriting, ignoring the spelling errors, he says: "I want to apologise and say sorry for the pain and hurt that I cause. You may have had nightmares, sleepless nights, bedwetting, scared to go to bed at night, scary shadows on walls, and this is because of me. I'm responsible, blame me for this. I'm very, very sorry."
The handwritten apology also extends apologies to [redacted], the offender's oldest cousin, apologising for breaking the trust in letting him into her home. He describes that the words and writing are from his own mouth and hand, and no one else.
The typed letter from the offender describes him having been in custody since October 2012. He describes waiting for his first opportunity for release to parole when he was charged with further historical offences and then given a new sentence which added to the end of his original sentence.
He describes having now been charged with further historical offences which will push his possible release date out much further, even though he has been in custody for over 11 years. Again, I note in passing it is now more than 12 years. The offender asks that the Court will consider the time he has already served.
He is now a 74-year-old Aboriginal man. He has had one family visit from his older sister in the past 11 years. Distance has been a problem because his family connections are in Bourke. He said that his other sister passed away recently before he was able to get a video-call visit with her.
He sets out positive things that he has been doing in custody. He said that he has completed the High Intensity Sex Offender Program (HISOP) at Long Bay. He said the program ran for 12 months, and said the facilitator said he had been consistently engaged with a high understanding of the content. He said he has completed alcohol and other drug programs. He completed the Getting SMART Program in 2011 and in November 2023, finished the EQUIPS Addictions Program.
He said that by the time the letter is read, he will also have completed the EQUIPS Foundation Program.
He said that he has successfully completed the Positive Lifestyles Program and has also engaged with the KYROS Program on a regular basis.
As well as these programs designed to address his offending, he had also completed a number of educational courses including Mandatory Safety Training; Skills Check; and Information Technology.
He said that he has always had a willingness to work and has always had a job when one has been available. He worked in textiles making clothes for other inmates and had a job from 2013 until 2020. Since being at Junee, he has been employed in the multicultural centre as the Administration Officer. He said that his behaviour in custody has been good, and that he has only had two infractions in 11 years. He received a reprimand for one and was confined to his cells for 3 days on the other.
He said if he was able to get to minimum security classification, he would be able to stand on the grass when he is out of his cell. He said the current charges prevent him from progressing to minimum security housing so most of his time in custody has been in medium or higher security settings and in concrete surroundings.
His typed letter states: "Even though being in jail has mostly been a punishment, it has helped me change my thinking and my behaviour and now I need help to restart my life."
He further states that his hope is to be released and go to the Campbelltown Integration Support Centre. That Centre will help him continue with any necessary interventions and help him find independent accommodation. He said he could attend Forensic Psychology in Sydney and continue with treatment. He also intends to work with the Boom Gate Gallery and sell some of his art. Examples of his very good artwork are included in the Defence Tender Bundle.
A letter from Chaplain David Simpkin of the Chaplaincy Team at Junee Correctional Centre dated 22 August 2023 has also been tendered. It certifies that the offender has completed the Positive Lifestyle Program which is an eight-module course used by NSW Corrective Services Chaplains. The program addresses various topics including self-awareness, anger, depression and loneliness, grief and loss, problem solving, assertiveness and goal setting through self-esteem and future directions.
Chaplain Simpkin described the offender having completed the program following a suggestion by parole. He states that: "Richard has been a delight to work with; he has come to every appointment and shared openly and honestly. His participation rate has been very high. I believe that Richard has valued having someone to take a personal interest in him, more than that, he applied himself 100% to the program."
I should note that the defence also tendered the detailed psychological report and the results of a number of psychological tests which had been undertaken with the offender by Dr Jenna Bollinger. Dr Bollinger's report, dated 1 March 2022, was particularly detailed and was referred to by Judge Hunt in his remarks on sentence, to which I will shortly refer, in September 2022. I have carefully perused that report and the psychological tests. I do not propose to set out a detailed summary. I do note that he was assessed as an Above Average Risk Category for being charged or convicted of another sexual offence. I also note the detail of what may be noted were Bugmy factors in the upbringing of the offender.
The Crown also tendered as part of the Crown Tender Bundle historical psychological reports and assessments including a report dated 31 August 2005 by Mr Peter Shkar from Duffy Barrier Robilliard Psychologists. I again do not set out a detailed summary. However, it may be noted that the offender was described as continuing to struggle at that time "with a paedophilic arousal pattern." The necessity of offence-specific treatment in order to minimise his risk of engaging in sexual offending behaviours and a return to the CUBIT Program was strongly recommended. Although his offending behaviour was described as "impulsive, unplanned, and opportunistic" it nonetheless reflected an entrenched paedophilic arousal pattern.
The Crown also tendered a psychological report with respect to the offender prepared by the Corrective Services psychologists Ms Ann-Maree Wheeler and Ms Sharon Kennedy dated 31 August 2005 at Bathurst Correctional Centre. This was provided to the District Court for the assistance of his Honour Judge Woods QC with respect to the offending in relation to the 4-year-old female child sitting on the floor of the store in Dubbo. I will deal with the detail of that shortly. It noted concerns in the earlier undertaking of the CUBIT Program and recommended that he be assessed for suitability to undertake and complete the High Intensity CUBIT Program.
The Crown also tendered the CUBIT psychological report from Mr Michael McElhone dated 11 January 2010.
As I indicated earlier, a psychological report from Dr Thomas Dornan dated 29 July 2024 was tendered in the defence bundle. Dr Dornan was provided with the earlier report from Dr Jenna Bollinger, copies of the letters from the offender to the Court, his criminal history, and the judgment of Judge Fullerton with respect to the Extended Supervision Order made by her Honour in 2011. Dr Dornan set out the disadvantaged background of the offender which I do not repeat. Dr Dornan made particular reference to issues contained within the Bugmy Bar Book.
Dr Dornan expressed the opinion that the institutionalisation of Mr Edwards and his custodial experiences had led to a sense of learned helplessness and dependency on the prison system. This made it difficult for him to adjust to life in the community and had likely contributed to a cycle of recidivism. Mr Edwards discussed with the psychologist that he has become more aware of what to expect from his release and that he is better prepared now than he had been previously. He described his intention to persist in his artwork which would likely generate some income. Mr Edwards believed that intensive supervision by community corrections would assist him in developing appropriate strategies to prevent further recidivism in the community.
With respect to the prospect of future offending Mr Edwards described his sex drive as "dead". He said that at the age of 74 he had experienced a natural decline in arousal which was in stark contrast to his sex drive in earlier years. He said that he couldn't get an erection even if he wanted to. In discussion with the psychologist, the offender was described as being able to demonstrate good insight into the impacts of child sexual abuse.
On the assessment carried out by Dr Dornan, he was of the opinion that Mr Edwards met the criteria for a diagnosis of Persistent Depressive Disorder as well as Post-Traumatic Stress Disorder (PTSD). Dr Dornan undertook a detailed analysis with respect to the prospect of future offending. Those factors extend over many pages in his 44-page report which I do not repeat in detail. The overall assessment, including dynamic and static factors, was that he posed a moderate risk of sexual recidivism.
Dr Dornan was of the view that Mr Edwards' mental health issues would make incarceration more onerous for him.
As previously indicated, Dr Dornan was required for cross-examination by the Crown. Dr Dornan elaborated on some aspects of his opinion in additional evidence-in-chief. In particular, he indicated that he had taken into account the completion of the CUBIT program or similar program on three occasions and that he had factored that into his ultimate opinion that the risk assessment should now be reduced to moderate.
In the course of cross-examination, Ms Hanshaw, solicitor advocate for the Crown, initially focused on the detail of the prior offending, notwithstanding the completion of the CUBIT Program. Dr Dornan was taken to the specific observations of Justice Fullerton in 2011 and the subsequent commission of further offences in 2012, notwithstanding community supervision. The insight that Dr Dornan expressed now being possessed by the offender was contrasted, or compared, to similar expressions of insight to psychologists in the historical reports tendered by the Crown. Dr Dornan explained the basis of his assessment that the expressions of insight and remorse to him appeared to be now quite genuine. Dr Dornan said that he could not speak as to what previous people had assessed but could give his own opinion into the level of insight of the offender. He said it was challenged by him throughout the assessment and he did not simply accept it on face value.
The learned Crown took Dr Dornan to assessments in the CUBIT Program from 2009 and he explained the basis for his risk assessment now being at a moderate level, contrasted with the earlier assessments of a high risk.
The cross-examination challenged the assessment by Dr Dornan that at the age of 74 one would expect a decline in offending behaviour, more than anything else, due a biological decline in sexual functioning. The cross-examination focused on the assault of the young child in 2005 and the Court was constrained to point out that the offender had been 55 at that time but was now 74 years of age. It was suggested to Dr Dornan that there was no reason to suppose that the offender's compliance with supervision after completing the HISOP Program would be any different to his compliance with supervision after his release in 2009 following a positive report from CUBIT. Dr Dornan pointed out that that earlier release was some 15 years ago and that he thought there could be effective change between then and the present time.
I should indicate that I take on board the various concessions that the Crown obtained in the course of the cross-examination of Dr Dornan. However, the fundamental basis of Dr Dornan's opinion and his risk assessment, in my view, remain.

HISTORICAL OFFENDING

The offender was born on 21 May 1950. His first interactions with the criminal justice system were at the Bourke Children's Court at the age of 10. In November 1960, he was placed on probation for an offence of break, enter and steal, and an offence of stealing. He was placed in the care of his mother and compensation was required to be paid of 16 shillings and threepence and four pounds for the stealing.
Two years later, shortly before his 12th birthday, he was committed to an institution on four counts of break, enter and steal.
The following year, 1963, he was again committed to an institution for stealing. In 1964, 1965 and 1966 he made effectively annual appearances in the Children's Court for breaking, entering and stealing. On each occasion he was committed to an institution.
His first appearance in an adult court was at the age of 18 in 1968. He appeared in the Bourke Quarter Sessions on four counts of break, enter and steal. He was sentenced to 12-months imprisonment on each count with a non-parole period of 6-months to date from 30 September 1968.
Over the following years, he had a number of driving offences which were dealt with by way of fine and disqualification. Invariably he was also charged with driving whilst disqualified.
Some 18 years after his first appearance in Bourke Quarter Sessions in 1968, he was charged in Bourke in 1986 with three counts of committing an act of indecency with a person under the age of 16. Two of the victims were 5 years of age.
The facts with respect to those matters have been tendered in the Crown Tender Bundle, Exhibit #1. They reveal that on a Saturday afternoon in May 1986 the offender was at a football ground at the rear of Bourke Golf Club. He enticed a number of children into a nearby shed on the promise of showing them some kittens. Seeing no kittens, all the children other than a five-year-old girl left the shed. The offender placed his hand down the front of her panties and onto her vagina. He also placed his penis in front of her panties against her vagina before allowing the child to leave the shed.
Later the same afternoon the offender went to his brother's home in Tudor Street, Bourke. A number of children were playing inside the house, including the offender's own young son. At some stage, after being promised marbles and chocolate, the various children left the house leaving behind a five-year-old boy. The offender indecently assaulted the five-year-old boy by placing his penis between the child's upper thighs and simulating intercourse. He apparently ejaculated before allowing the child to leave the house.
The offender was convicted in the District Court in Nyngan in June 1987 following a trial. He was found Guilty by the jury with respect to the first two complainants. He was found Not Guilty with respect to a third complainant.
He was sentenced by Judge J Moore to a term of imprisonment of 3 years with respect to offending against the 5-year-old female victim and a wholly accumulated sentence of 2 years with respect to the 5-year-old male victim. The aggregate sentence of 5 years was given a non-parole period of 2 years and 6 months. The sentence was backdated to commence on 1 June 1987.
He was released to parole in January 1989 and thereafter remained out of custody until 1996.
The current offences against the victim, Veronica Lamb, were committed during this period between approximately 1994 and 1996, as were offences committed against Barbara Johnston, the cousin of the present victim.
His only charged offending during that period related to driving an unregistered vehicle while not holding a licence. On the same occasion he was also fined for driving with a mid-range PCA. That conviction was at Dubbo Local Court. The 3-year disqualification was reduced by Judge Ward in Dubbo District Court to a period of 2 years.
He was in custody for approximately 2 weeks in late 1996, although the criminal history, in regrettably customary fashion, does not assist in revealing the reason for that short period of incarceration. I suspect that he may have been bail refused with respect to the offences committed against Barbara Johnson with which he had been charged in October 1996.
In March 1998, the offender was sentenced with respect to the offending against Barbara Johnson, by Judge Bellear in the District Court at Cootamundra with respect to four offences of indecent assault of a child under 10. He had pleaded Guilty.
The victim of these indecent assaults, as I have already pointed out, was the child Barbara Johnson who was similarly a distant relative of the offender.
With respect to the first count, the child had been in a bath with her cousin, Veronica Lamb, who was aged about 3 or 4 years at the time. The victim, Barbara, was in grade 2 at school and was approximately 7 or 8 years of age. The offender came into the bathroom to wash his hands and the offender touched Barbara directly on her vagina with his hand.
Whilst it has not been made clear either in the Agreed Facts, the submissions or otherwise, it would appear that this is likely the same occasion which is the subject of one of the offending acts presently before the Court with respect to the younger cousin, Veronica Lamb who was in the bath at the same time.
The second offence dealt with in the District Court at Cootamundra related to the same victim, Barbara Lewis. The incident is identified as having occurred between 1 April 1994 and 16 December 1994 at premises in [redacted]. The child was playing basketball in the backyard of her home. The offender was visiting and approached the child in the backyard. She ran behind a shed to hide. He followed her behind the shed and pulled her shorts and underpants down to her knees and touched her directly on the vagina. He told the child "Don't tell your mum and dad."
The third charge related to an incident at a 50th birthday party in Leeton. Numerous extended family members including the offender attended the party. Barbara was playing with her cousin Veronica in the backyard in which two tents had been erected to accommodate family members who intended to stay over. The offender called the two small girls over to a rabbit hutch in the backyard. Veronica subsequently ran away and the offender and Barbara went behind the rabbit hutch. He put his hand under her dress and rubbed her on the vagina on the outside of her stockings and underpants.
A short time later, the offender again approached Barbara behind one of the tents which had been erected in the backyard. He crouched down in front of her while she stayed standing and pulled down her stockings and underpants to her thighs. He then licked her vagina with his tongue and mouth for a short period of time.
Barbara told her mother what had occurred in early July 1995. Her mother contacted the mother of the present victim, who then spoke with Veronica and confirmed that she also had been touched by the offender. Barbara's family were living in Victoria at the time. Police in [redacted] were subsequently contacted and the child complainant interviewed. In October 1996 the offender was arrested and charged in Dubbo with respect to one only of the two victims.
With respect to the first two counts he was sentenced to fixed terms of 18 months. The sentences were to run concurrently and were backdated to commence on 15 February 1998. With respect to the third and fourth counts which had occurred in Leeton, Judge Bellear imposed sentences of 4 years with respect to each matter. The 4-year sentences were concurrent with each other and wholly accumulated on the fixed terms of 18 months. Accordingly, they were to commence on 15 August 1999. A non-parole period of 2 years was imposed. The effective aggregate sentence was 5 ½ years with a non-parole period of 3 years 6 months. It should be noted in passing that the total effective term contained in the table of chronological offending in the Crown bundle incorrectly states that the total effective term was 4 years 6 months with a total effective non-parole period of 2 years 6 months.
Notwithstanding an eligibility for parole in August 2001, his custody record indicates he was not released to parole until November 2002.
He was next arrested in March 2005 and charged with the indecent assault of a victim under the age of 10. The factual background to that offence is described in a psychological report prepared at Bathurst Correctional Centre for the assistance of Judge Woods QC who was the sentencing judge sitting at Dubbo District Court.
On the morning of Wednesday, 23 March 2005, the offender, referred to in that report as Richard Darrego, entered a store in Dubbo. I note in passing that the use of the surname 'Darrego' or 'Darrigo' is the way in which the offender was referred to in court proceedings at that time, and subsequently in the Court of Criminal Appeal, and indeed in some documents in his own handwriting. The 4-year-old female victim was playing on the floor waiting for her mother. The offender approached the victim, and placed a doll in her lap and then placed his hand up her skirt and commenced to fondle her vagina and buttock area. There is no suggestion in the Agreed Facts that the offence was premeditated and that the offender was carrying a child's doll with him. Given the nature of the store, it would appear likely that he picked the doll up whilst in the shop.
The offender then left the shop and the victim retreated from him and went in search of her mother. The victim told her mother what had occurred and vision of the offending conduct was retrieved from the store security surveillance camera.
The offender told the psychologist at Bathurst Correctional Centre that he was on his way to Dubbo Court for a drink-driving charge when he had entered the store to purchase some curtains. He saw the girl was alone and had the urge to fondle her. He said that he did not stop to think and just acted on impulse. He said this was his first offence of this nature since his release from custody in 2002.
The psychologist formed the view that his description of the offending evidenced a level of minimisation and a failure to accept responsibility for the offence.
The offending conduct in the store in Dubbo led to Judge Woods QC imposing a sentence of 7 years with a non-parole period of 5 years commencing from March 2005.
In February 2007, the Court of Criminal Appeal granted leave to appeal against the severity of that sentence: Darrigo v R [2007] NSWCCA 9.
It is appropriate to note, as I have already remarked, that while the offender appears in the present proceedings as Richard John Edwards, he was referred to as Richard John Darrego in the psychological report provided to Judge Woods QC and a similar spelling of his name in the Corrective Services Treatment Report prepared in January 2010.
The judgment in the Court of Criminal Appeal refers to him as Richard John Darrigo.
The Agreed Statement of Facts was summarised in the Court of Criminal Appeal judgment and in fact makes it clear that the offender had picked up a doll from a display in the shop.
In upholding the appeal against severity, Price J, with whom Hodgson JA and Howie J agreed, said that Acting Judge Woods QC, on the assumption that the sentencing judge had allowed a discount of 25%, had commenced with a notional starting point of an undiscounted sentence of 9 years and 4 months. In fact, his Honour had not indicated the percentage discount. Viewed against a maximum penalty of 10 years imprisonment, it was successfully argued that the notional starting point was too close to the maximum.
Price J found that the sentencing judge had incorrectly made use of the applicant's prior convictions as an objective circumstance of the offence and had thereby expanded the bounds of the sentence beyond that which was proportionate to the objective circumstances of the offending. His Honour found support for that conclusion in the notional starting point.
The Court of Criminal Appeal proceeded to resentence. The starting point was determined to be 8 years imprisonment which reduced to 6 years on account of a 25% discount for the plea. Special circumstances were not found and a non-parole period was specified at 4 years and 6 months.
The offender had been bail refused from the day of his arrest on 23 March 2005. He was accordingly eligible for release to parole on 22 September 2009. There were no recorded infractions whilst in custody during this period of imprisonment. However, he was not released to parole until 27 November 2010.
The Court had not been provided with any reports from the parole board. However, I note that following an inquiry during the period that judgment was reserved, some reports from the State Parole Authority have now been provided. I will refer to those in due course.
The Court has, however, been provided with a treatment report prepared by a specialist psychologist, Mr Michael McElhone, dated 11 January 2010, who works within Corrective Services in the Sex Offender Program - Custody-Based Intensive Treatment (CUBIT) Program. The offender's participation in the CUBIT program was described as following: "Mr Darrego demonstrated throughout treatment that he was motivated to take the steps necessary to change his negative, offence-related behaviour. This was seen not only through his general participation in group sessions and through homework tasks, but also in his willingness to disclose relevant information about himself which he appeared to experience at times as embarrassing or shameful."
A Static Actuarial Risk Assessment utilising the Static-99 was administered. By reference to absolute risk, offenders with the same score as Mr Darrego showed a rate of sexual recidivism that ranged between 22.3% and 38.2% over five years, and between 30.8% and 48.5% over ten years. The interpretation of these figures means that of similar offenders, between 22 and 38 out of 100 would re-offend sexually after five years, and between 40 and 49 out of 100 would re-offend sexually after ten years. An assessment of his relative risk also reflected a score indicated by a high presumptive risk level relative to other adult male offenders.
The concluding remarks in that report indicated that the offender had the characteristics of a group of offenders who were at a high risk of sexual and/or violent reoffending. It was recommended that on release the offender discuss with the Aboriginal Medical Service a medical investigation for possible treatment with anti-libidinal medication as recommended by Mr Marcelo Rodriguez in the course of the CUBIT program. The offender had responded positively to that suggestion by the Community Forensic Mental Health Team in August 2009. It was recommended that the offender participate in the community-based maintenance program upon his ultimate release from custody. A copy of the self-management/good life plan completed by the offender (who I note wrote his surname as 'Darrigo' in his own handwriting) acknowledged that he would not put himself in a position of being around children unsupervised. He said that he wanted to stay offence-free and that he would walk away and call his support person if such a situation arose.
Following his release on parole the offender began residing at the Campbelltown Community Offenders Support Program in Rose Street, Campbelltown. On 7 March 2011, the offender was observed loitering near a school. The following day, he was arrested and charged with loitering near a public place as a convicted child sex offender. The facts relating to that offending are not included in the Crown Tender Bundle. His criminal history indicates that he was arrested and charged on 8 March 2011 and sentenced at Campbelltown Local Court on 29 June 2011. He was sentenced to 12 months imprisonment with a non-parole period of 9 months. He remained in custody until again released to parole on 7 December 2011.
It is to be noted that at the time of that offending, he was still subject to parole. The sentence which had been imposed in the Court of Criminal Appeal in 2007 was not due to expire until 22 March 2011. His parole order was revoked by the State Parole Authority on 11 March 2011 and he was required to serve 16 days being the backdated balance of parole.
It would appear that the service of the balance of parole was ignored by the Local Court Magistrate in backdating the sentences imposed in Campbelltown on 29 June 2011.
On 29 November 2011, the offender was made subject to a 5-year Extended Supervision Order pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006. That order imposed 54 conditions on the offender. The judgment of Fullerton J has been tendered: State of New South Wales v Darrego [2011] NSWSC 1449. The legislative scheme under the Crimes (Serious Sex Offenders) Act 2006 provided for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. Such an Extended Supervision Order may only be made "if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision." (section 9(2)).
Justice Fullerton set out the detail of Mr Edwards' past history of sexual assaults. The most recent sentence that he had served which had been imposed in September 2005 related to the 4-year-old female victim. Her Honour described that victim as the most recent of seven sexual offences the offender had committed between 1986 and 2005 in relation to four separate children, namely a 4-year-old girl, a 5-year-old girl, a 5-year-old boy and a girl aged 7 or 8 years of age. He had most recently been arrested and charged with loitering near premises frequented by children. His parole had been revoked.
Her Honour examined the detail of the offender's participation in the Custody-Based Intensive Treatment (CUBIT) Program in which his overall participation had been described as "mixed" and his progress as "inconsistent". His failure to take full responsibility for his offending had been noted. His further participation in the CUBIT Program in 2009 was also examined. His participation on that occasion was the subject of a positive report.
Prior to the offender's release on parole, he had commenced anti-libidinal treatment. Court-appointed psychiatrists, Dr Andrew Ellis and Dr Anthony Samuels, were nominated to conduct separate psychiatric examinations and furnish reports. Both of those psychiatrists assessed the offender as meeting the diagnostic criteria for Paedophilic Disorder. A report from a psychologist, Mr McElhone assessed the offender as presenting a high risk of sexually re-offending.
Her Honour ultimately made an Extended Supervision Order for a period of 5 years from 29 November 2011.
Condition 19 of the conditions imposed pursuant to the Extended Supervision Order specified that he must not approach, associate or maintain any contact with a child under the age of 16 years unless in the presence of an appropriate adult.
On 2 July 2012, the offender left the premises of the Community Offenders Support Program and went to Campbelltown Mall. He walked around the upper level before observing a young unidentified girl aged approximately 6 years. The girl was walking through the centre with an adult male and teenage male. The offender followed the child down an escalator. As he moved off the escalator on the lower level, he walked quickly up behind the young girl and touched her on the bottom with his right hand on the outside of her clothing. This matter was charged as an indecent assault of a person under 16 contrary to s 61M(2) of the Crimes Act 1900.
Shortly afterwards, the offender was loitering in the vicinity of the public toilets. The Statement of Agreed Facts which has been tendered is clearly missing a page. Accordingly, it is uncertain whether it was the same day, namely 2 July 2012, or a subsequent day at the Campbelltown Mall. However, an identified victim was walking towards an escalator to leave the shopping arcade with her mother and siblings. The child was under 16 and the offender walked up behind her and placed his hand on her bottom over her clothes. The victim told her mother what had happened and the matter was reported to police that day. CCTV cameras had captured the incident and the offender was subsequently charged with an indecent assault contrary to s 61M(2).
On 26 July 2012, the offender again left his residence at the Community Offenders Support Program and once more went to the Campbelltown Mall. CCTV footage subsequently obtained showed him loitering outside Coles Supermarket watching patrons, including children. Later that morning he went into the Reject Shop where he took a bottle of Pepsi and a chocolate from the shelf and left the store without paying. A short time later he was again captured on CCTV footage following a number of children who appeared to be under 10 and were walking with female adults in the shopping centre. The offender was recognised from the earlier incident and security was alerted. He was subsequently arrested and charged on 2 August 2012. I note in passing that he has remained in custody ever since that date.
The matter was committed for sentence to the District Court and on 9 April 2013, the offender was sentenced by Judge Arnott SC with respect to the principal count of indecent assault, with the indecent assault of the unidentified child on a Form 1. He was also charged with the offence of loitering near a public place, and the larceny of the drink and chocolate were also on the Form 1. Two related summary offences were before the District Court on a Section 166 Certificate.
With respect to failing to comply with the Extended Supervision Order, he was sentenced to 6 months imprisonment backdated to commence on the date of his arrest on 2 August 2012.
With respect to the summary offence of being a convicted child sex offender loitering near a public place, Judge Arnott SC imposed a term of imprisonment of 9 months which was partly concurrent with the 6-month sentence. The 9 months was backdated to commence on 2 November 2012.
With respect to the indecent assault, including the matters on the Form 1, the offender was sentenced to a term of imprisonment of 7 years, with a non-parole period of 4 years and 6 months. The sentence and non-parole period were backdated to commence on 2 February 2013. The overall effective head sentence was, accordingly, 7 ½ years with an effective non-parole period of 5 years. Perhaps surprisingly, there was no appeal against this sentence.
The non-parole period was due to expire on 1 August 2017 and the overall sentence on 1 February 2020. The remarks on sentence by his Honour Judge Arnott SC were recently forwarded to the Court. It is to be noted that his Honour specifically gave consideration to the circumstance that the offender would be older when the non-parole period expired. However, his Honour thought there was a significant risk of him re-offending.
It can be noted in passing that his Honour's pessimistic prescience has not been tested as the offender has never been released since the time of that sentence.
The offender was not released to parole when he was eligible in August 2017.
A Pre-Release Report had been prepared dated 24 May 2017. That report was prepared by Sarah Gilmore, the Unit Leader of the Metropolitan Extended Supervision Order Team. Although not part of the original Crown Tender Bundle, that report has recently been forwarded to the Court, with other reports from the Parole Authority. The report noted that the Extended Supervision Order was breached in under 8 months by the further sexual offences committed against children at Campbelltown. It was noted that although Mr Edwards had not been charged with any institutional misconducts, there had been some difficulties with cellmates who usually wanted to move from sharing a cell with him. He was a C2 inmate and was housed at the Metropolitan Special Programs Centre. Given his classification as a C2 inmate, he was not approved to participate in pre-release leave.
As a consequence of the breach of the Extended Supervision Order, when he was released from custody, the offender had been identified as requiring further sex offender treatment, notwithstanding his completion of CUBIT on two previous occasions. He was again accepted into CUBIT in December 2016. However, he remained on the waiting list. The offender acknowledged that his participation in CUBIT would exceed his earliest release date but he expressed a willingness to still engage in the program.
His participation in art classes was also noted. There had been no issues with his work and employment in the Textiles Unit.
The offender was assessed as suitable for medium-high level of intervention by Corrective Services NSW commensurate with his assessed risk of re-offending. It was noted that he had no post-release accommodation and that he would reside on eventual release at either the Integrated Supported Centre (ISC) or the Community Offender Support Program (COSP). Although eligible for such accommodation, he had not yet signed the referral forms.
On release the offender would be subject to the Child Protection Register for a period approaching 12 years which would be re-activated on his release. Given the offender's verbal agreement to complete CUBIT again with the knowledge that this would not occur before his earliest release date, release to parole was not supported at that time.
On 31 May 2017, a Notice of a Special Interest Offender was recorded, signed by Lynne House, Senior Project Officer, in the Serious Offenders Assessment Unit. That notification sought that the Commissioner for Corrective Services be given an opportunity to consider making submissions in the event that the Parole Authority proposed to decide that the offender should be released on parole.
Parole was refused on 4 August 2017. The recorded reason was the necessity to complete a program to address offending behaviour of sex offending and the need for structured post-release plans and/or accommodation to be finalised. The documentation provided to the Court recently indicates that the remarks on sentence by Judge Arnott SC and his Honour's expressed consideration of the offender having a significant risk of re-offending were noted to be of particular significance.
On 10 August 2017, the offender requested reconsideration of the decision by the Parole Authority to refuse parole. He indicated that he did not agree with his convictions as he did not remember committing the offences. At a meeting on 24 August 2017, the State Parole Authority considered the application for review and determined that a review hearing was not warranted. The decision to refuse parole initially made on 1 June 2017 was to stand because of the need to complete the program to which reference had previously been made. The notification of that determination indicated that reconsideration for possible release could be made on the anniversary of the parole eligibility date, namely 1 August 2018.
A further Pre-Release Report headed "Anniversary Report" was prepared dated 24 May 2018. The offender had returned to the CUBIT Program in April 2018 and had recently completed the readiness phase and was moving into the treatment component. It was currently estimated that he would likely complete the program in December 2018.
In a telephone discussion with Mr Edwards he advised the author of the report that he did not wish to be considered for release to conditional liberty as he was aware that he needed to complete the CUBIT program. The offender stated that he would submit a Manifest Injustice Application nearing the completion of the program. Accordingly, the recommendation in that Anniversary Report was that he not be released to parole at that time. A notification signed by the offender himself indicated that he did not wish to be considered for release on parole at that time.
Accordingly, the State Parole Authority declined to consider Edwards for parole. The notification to that effect was dated 7 June 2018.
On 21 December 2018, Mr Edwards submitted a request for reconsideration of his parole under the heading of "Manifest Injustice". He noted in writing, which he had signed, that he had been advised by the psychologist to submit the form as he would have completed the CUBIT Program by 9 January 2019.
On 31 December 2018, the State Parole Authority advised that the application was stood over to 1 March 2019 pending receipt of a Community Correction Officer's Report which was required not later than 14 February 2019. On 18 February 2019, the Commissioner of Corrective Services again gave notice seeking an opportunity to consider making submissions with respect to any decision to release the offender.
On 22 February 2019, a Pre-Release Report entitled "Manifest Injustice" was again prepared. The report noted that contact with the custody-based Sex Offender Program staff revealed that Mr Edwards had accepted responsibility for one of the physical contact offences in the shopping mall but continued to deny the loitering offences. The staff on the program reported that Edwards appeared to be aware that his behaviour towards children was inappropriate and that children were not sexual beings.
While the offender remained a C2 classified inmate and had incurred no institutional misconducts, it was noted that he had demonstrated a failure to respect and follow rules which remained a major issue within the wing where he was accommodated. He had been involved in a number of verbal conflicts but they had not escalated to physical violence.
The offender's participation in eight Narcotics Anonymous sessions between February and August 2017 was noted. He had commenced the High Intensity Sexual Offender Program (HISOP) on 6 April 2018 and had completed the program on 8 January 2019. I should note in relation to the acronyms for HISOP and CUBIT, that CUBIT replaced HISOP. He had participated well in groups and appeared to be able to make appropriate changes when given feedback and supported by his treatment group. However, he was noted as seeming to struggle to do this independently. The treatment completion program regarding his participation in HISOP had not yet been received. If released, he would again be monitored at a T3/High Level as per the Extended Supervision Order policy.
Having completed HISOP/CUBIT for the third time, there were no further treatment options available for him in custody. He had presented as motivated not to re-offend while undertaking HISOP and had confirmed his willingness to comply with the conditions of his Extended Supervision Order and Parole Order. It was noted that although Edwards required intensive supervision in the community, it was considered that he may benefit from a graduated release so that his compliance with supervision and monitoring could be tested outside the custodial environment and prior to release.
In the absence of the Completion Report from the program, the recommendations of which would form an integral aspect of risk mitigation strategies and post-release planning, it was respectfully requested that a standover period be granted. The Unit Leader noted those recommendations and accordingly did not recommend release to parole at that time.
On 28 February 2019, the State Parole Authority again declined to proceed to a consideration of the question of parole under Manifest Injustice. The reason given was the Community Corrections Officer not recommending release at that time.
A further Pre-Release Anniversary Report was prepared and dated 12 May 2019. That report noted that Mr Edwards had advised the Community Corrections Officer that he did not wish to be considered for release to conditional liberty because he stated that he did not want to serve a period of parole in addition to his Extended Supervision Order. Accordingly, it was the recommendation of Community Corrections that he not be released at that time. The various appropriate managers supported that recommendation. A notification to the State Parole Authority signed by Edwards on 10 May 2019 indicated that he did not wish to be considered for release on parole.
Accordingly, on 6 June 2019 the State Parole Authority declined to consider the question of release to parole.
He was then charged in October 2019, approximately 3 and a half months before he was due to be released at the conclusion of his head sentence imposed by Judge Arnott SC, with the additional historical child sex offences which were alleged to have been committed against another child relative when she was aged 6 or 7 years of age in 1984 and 1985.
The offender remained in custody bail refused with respect to those fresh matters. The indictment presented against the offender contained 18 counts. They embraced sexual conduct by the offender when he still lived in Bourke and was aged between 33 and 35. The child victim, Christine Day, was variously aged between 6 and 7 years of age (although I note the sentencing judgment refers to her between 5 and 7 years of age).
A judge-alone trial proceeded before his Honour Judge Hunt in the District Court. His Honour found the offender Guilty of 17 counts and Not Guilty of one count on the basis of an insufficiency of evidence.
Six counts were of assault with an act of indecency upon a victim under the age of 16, contrary to the provisions of the then s 61E(1) of the Crimes Act 1900. Each of those matters carried a maximum penalty of 6 years imprisonment. Four counts were of an act of indecency with a person under the age of 16 contrary to s 61E(2) of the Crimes Act 1900 carrying a maximum penalty of 2 years imprisonment. Four counts were of sexual assault on a victim under the age of 16 in breach of s 61D(1) of the Crimes Act 1900 which carried a maximum penalty of 10 years imprisonment. Two counts were offences of attempting to carnally know a girl under the age of 10. This contravened the then s 68 of the Crimes Act 1900 and carried a maximum penalty in each case of 14 years imprisonment.
Count 18 was a common assault contrary to s 61 of the Crimes Act 1900 which carried a maximum penalty of 2 years. The prescribed sexual offences were subject to s 25AA of the Crimes (Sentencing Procedure) Act while count 18, the common assault, was not subject to that provision. Section 25AA requires the Court to sentence for prescribed sexual offences in accordance with current sentencing practice.
While I will return to the question of pre-dating of the commencement of a sentence in the proceedings before Judge Hunt, it was common ground between the Crown and the defence that the earliest date any sentences to be imposed could be backdated to, was the date of the fresh charges against the offender, namely 14 October 2019. It was also a common position that the latest possible date on which a sentence could commence was 1 February 2020 when the sentence then being served would otherwise expire.
The various offences before Judge Hunt had proceeded to trial as a consequence of the entering of pleas of Not Guilty. The offences involved the victim in a course of conduct by the offender, over a discrete but not insignificant period. The first five counts referred to what was described as the first episode of offending. Within the period of time between 1 January 1984 and 31 December 1985, when the victim was somewhere between the ages of 5 and 7, she went to the offender's home to play with her cousins who were the offender's sons. When she arrived, she climbed the back fence and called out for somebody to pick her up from the fence. The offender was the only person at home. He approached the victim and picked her up from the fence. He grabbed her with both hands under her armpits. As he slowly put her down, he rubbed his erect penis against the front of her body. The offending took place for a matter of seconds and contact was through the clothing of both the offender and the victim.
A short while later, the offender's sons came home and the victim started playing with them outside. The offender called the victim and one of his sons into the kitchen where he spoke to them about whether they were boyfriend and girlfriend and showed them some pornographic material.
The offender then took the victim into his bedroom and closed the door. He left his son outside. He again showed the victim some pornographic material in the bedroom and proceeded to rub the victim on her vagina on the outside of her clothing. He then masturbated by moving his hand up and down his erect penis while he was positioned in front of the victim.
He then removed the victim's shorts and underpants and rubbed her vagina skin to skin. He then used two fingers to digitally penetrate the victim's vagina. After committing these offences, the offender told the victim not to say anything or she would be in trouble for lying.
The next five counts occurred during what was described by the sentencing judge as 'the second episode'. The victim again attended the offender's home to play with her cousins. In similar fashion to the first episode, she climbed the back gate and called out to be lifted down. There was effectively a repetition of what had occurred on the first occasion with the offender rubbing his body and erect penis against the victim's genital area while he lifted her down.
He then took the victim by the hand into his bedroom. The victim observed the offender masturbating for a short while before he approached the victim whilst holding his penis in his hand. He then held the back of her head and put his penis inside her mouth. The offender ejaculated after he pulled his penis out of her mouth. He then pulled the victim's pants down and licked her on her vagina with his tongue. He then used two fingers to again digitally penetrate the victim's vagina.
The next three counts were described as the 'Christmas episode'. The time period alleged was during December 1984. At that time the victim was 6. The victim rode to the offender's home at the request of her mother to borrow some cigarettes. After she knocked on the door, the offender answered and told her to come inside. They again went to the bedroom where the offender lifted up the dress the child was wearing and rubbed on her vagina on the top of her pants for a short time. He then took off her pants and placed her on the end of the bed. He rubbed his penis against the victim's vagina and endeavoured to insert it. She described the pain that she felt.
The offender then put his penis between the victim's legs and simulated having sex with her. He then stopped and ejaculated in the corner of the room. He gave the victim $10 and she walked home pushing her pushbike because her vagina was too sore to ride the bicycle home.
The next two counts, described as the fourth episode, took place in a shed at the home of another relative. The offender and the victim went into a shed where the offender forced the victim to lick a puppy's private area. The sentencing judge took a particularly dim view of that degrading conduct. The offender then removed his penis from his shorts and pulled the victim's pants down. He attempted to insert it in her vagina.
The last two counts related to what was described as the fifth episode. They occurred on a levee bank in an outdoor area. On this occasion the offender masturbated in front of the child and thereafter struck the victim across her buttocks after she had sworn at him.
The Court was not able to make any finding in relation to remorse. Similarly, there was no utilitarian discount. Judge Hunt analysed the detail of the offender's past sexual offending and the sentences which he had been serving. His Honour referred to the very detailed psychological assessment which had been tendered from Dr Jenna Bollinger, a Forensic Psychologist. Judge Hunt made reference to a level of dysfunction in the upbringing of the offender and some exposure to violence in his childhood. He described a lack of discipline in the family home and some degree of neglect. Dr Bollinger's assessment at that time was that the offender presented with an above-average risk of re-offending. Judge Hunt noted that the offender had undertaken the CUBIT program three times in custody. Judge Hunt remained very guarded about prospects of rehabilitation. Judge Hunt also took into account that the offender was in his early 70s and was approaching the age statistically when Aboriginal males were likely to die.
Judge Hunt also made clear that he was required to take into account the principle of totality. Accordingly, he determined to commence the aggregate sentence which he imposed to date from 14 October 2019, the date the offender was charged. Judge Hunt identified indicative sentences which it is unnecessary to set out in full detail. The indicative terms ranged from 28 months down to 3 months. The total head sentence was one of 8 years from 14 October 2019 with a non-parole period of 4 years and 6 months. The offender, accordingly, was eligible for release to parole on 13 April 2024.
The fairly significant adjustment to the ratio between the head sentence and the non-parole period was effectively so as to have regard to the statutory ratio in broad terms for the totality of the term of imprisonment that the offender would in fact serve. The total effective period of imprisonment from August 2012 became one of just under 16 years. The fresh non-parole period was effectively just short of a total of 12 years which was intended to give effect to the actual period required to be served, being approximately 75% of the total effective term.
Against that background, the offender has remained in custody as a consequence of being charged with the present matters on 4 April 2023.
A further Pre-Release Report was prepared in advance of the expiration of the offender's non-parole period imposed by Judge Hunt which was due to expire on 13 April 2024. That Pre-Release Report was prepared by Mick Glover, the Community Corrections Officer of the Extended Supervision Order Team and was dated 29 December 2023. Ms Joanna McKenzie, the Team Leader of the Extended Supervision Order Team, supported the recommendation for parole and was of the opinion that the supervision plan was considered to adequately mitigate the risk factors of the offender. In the course of an interview with the offender on 14 December 2023, the author of the report formed the opinion that the offender had failed to articulate any insight into his offending behaviour. He described him having blamed loneliness and his Extended Supervision Orders for preventing him resuming a relationship with his family. The author of the report thought he had not demonstrated any empathy towards his victims.
He described him having completed the High Intensity Sex Offender Program (HISOP) and his willingness to engage in ongoing maintenance with Forensic Psychology Services after his release. Correctional staff had described him as polite to staff and other inmates alike. The offender's engagement in the parole interview was described as positive and open. He was also noted as having completed the EQUIPS Addictions Program in November 2023 and subsequently the EQUIPS Foundations Program in December 2023. The report also noted his willingness to reside at the Integration Support Centre (ISC) and he had signed the ISC resident terms and a referral had been submitted. His sale of artwork through the Gallery at Long Bay was also noted, as was his intention to continue to focus on his artwork post-release. The offender also stated a willingness to engage with the William Wilberforce Foundation.
On this occasion, he was assessed at a medium-risk of re-offending according to the Level of Service Inventory-Revised. However, that assessment was overridden and reassessed to high-risk following an assessment conducted by Corrective Services psychologist, Timothy Wu. A detailed supervision plan was set out and on this occasion Community Corrections recommended that a parole order should be made for the offender.
On 8 February 2024, the State Parole Authority authorised and directed that the offender be released on parole on 13 April 2024.
Needless to say, the offender was not released to parole as a consequence of him being bail refused with respect to the matters presently before this Court.
I make the following observations. Since the offender went into custody in March 2005, he has had only two periods in the community. He was released to parole in November 2010 before going back into custody in March 2011. He had been back in the community for less than 3 and a half months. He was next released to parole in December 2011 before going back into custody following his arrest in early July 2012, some 7 months later. He has remained in custody ever since. It can accordingly be seen that his total period in the community is slightly more than 10 months in what is now in approaching 20 years.

VICTIM IMPACT STATEMENT

The victim, who is now 33 years of age, prepared a victim impact statement which she read in open court. It is appropriate to observe that the action of reading aloud what had been prepared took a degree of courage and it is appropriate that that be recognised. The trauma that she described within the statement was exemplified in the physical manifestation of her anxiety and the need to have the close support of a support person whilst reading the statement. Those outward appearances, as well as the content of the victim impact statement itself, confirm and re-affirm the long-standing effects of the emotional and mental trauma inflicted upon young children who are exposed to sexual abuse at such an early age.
The victim described that the trauma she suffers with will forever linger within her. She said: "That innocent little girl would never have foreseen the lifelong impact of his actions." She described not simply living as a victim or a survivor but instead battling emotionally through every day. She described internalising what has been a constant struggle. She described joyous moments in her childhood being overshadowed by the memories of what he had done.
Somewhat poignantly, she described her daily life having become even more challenging since having her own children. She describes a constant fear of something happening to them. She said that it consumes her to such a degree that she cannot recall the last time that she fell asleep without anxiety, worries or doubts, particularly about the children.
She described the toll that such a state of anxiety has had on her marriage. She said they had been prompted to seek counselling because she had been too afraid to share her childhood trauma with her husband. She described the pervading anxiety making it difficult to hold down a full-time job. She described having scrutinised, judged and assessed every male that has entered their lives because she is haunted by what the offender did to her. She said that she knows that what Richard did to her was not her fault. She can never shake the guilt of not speaking up sooner to protect herself, her cousin, and other children.
She said that what had occurred had changed the trajectory of her life. She said that counselling was offering a glimmer of hope but she knew that there was still a long journey ahead before she would be able to break free from the grip of these sickening memories.
It is appropriate to be reminded that the statutory scheme set out in Part 3, Division 2 of the Crimes (Sentencing Procedure) Act 1999 specifically provides for the receipt of victim impact statements. The importance and significance of the need of the law taking account of the impact of offences on victims of sexual abuse and other acts of violence, has frequently been referred to.
In Munda v Western Australia [2013] 249 CLR 600 at [54] the High Court referred to the role of the criminal law as including "the longstanding obligation of the State to vindicate the dignity of each victim of violence."
The statement prepared and read in the current proceedings reflects not only the general experience of the law with respect to the sexual abuse of young children, but highlights the specific harm suffered by the individual victim in the present matter.
I take note of the observations of Basten JA (Latham J agreeing), in R v Thomas [2007] NSWCCA 269. I will give relevant weight to the victim impact statement which has been read.

SUBMISSIONS ON BEHALF OF THE OFFENDER

Detailed written submissions on behalf of the offender were provided to the Court. Noting that the offender had been charged with the present matters on 4 April 2023, taking into account that the non-parole period that he was then serving did not expire until 13 April 2024, the defence submitted, for reasons set out in particular detail, that an appropriate starting point for any sentence should be 4 May 2023. It was submitted that the sentence imposed should provide for the offender becoming eligible for parole on the current matters "early" in 2025. It was further submitted in overview that the head sentence should give "meaningful effect to the principle of totality." The ultimate defence submission was that a non-parole period of between approximately 19 and 23 months would be appropriate, backdated to the suggested date.
The submissions reminded the Court that the offender was entitled to a 25% discount and assessed the objective seriousness of each of the offences.
The defence highlighted the necessity of the Court expressly stating that the sentence has been determined in accordance with s 25AA(1) of the Crimes (Sentencing Procedure) Act 1999.
It was submitted that the Court would be satisfied of the offender's genuine remorse and that he had an upbringing against a background of disadvantage and that the principles enunciated in Bugmy should be borne in mind. It was submitted that the disclosure by the offender of having been sexually abused himself when in juvenile detention and described to both Dr Bollinger and Dr Dornan should be accepted.
The defence highlighted the delay between the provision of the statement by the victim to police on 19 November 2021 and the delay in the offender being charged on 4 April 2023. The defence submissions also highlighted the mental health and age of the offender, as well as the medical health problems.
With particular focus on the offender's increased age, the defence submitted that the Court would be guarded about prospects of rehabilitation but submitted that his risk of re-offending had been reduced from the time when he was sentenced by Hunt DCJ in 2022.

CROWN SUBMISSIONS

The learned Crown Prosecutor, Ms Hanshaw, solicitor advocate, made detailed submissions both in writing and orally, the ultimate effect of which was that the Court would be falling into appealable error to impose a sentence in accordance with the defence submissions. To a very considerable extent, the Crown's submissions focused on the repeated offending by Mr Edwards and the assessment of his risk of re-offending as having been high. As noted earlier in my remarks, the detail of each of the previous and historical sexual offending has been provided by the Crown with respect to all of the offending by the offender. In the Crown's submission, the circumstance of having undertaken the CUBIT and subsequently HISOP programs would lead to a serious question as to whether the offender was capable of reform and rehabilitation at all.
Whilst the Crown disavowed a submission to the effect that an appropriate sentence should be entirely cumulative, the Crown sought to rely upon cases dealing with the principle of totality in such a way as to require the imposition of a not-insubstantial additional term as to both a head sentence and an extension of the period before eligibility for parole should be considered.
The Crown submitted that an aggregate term of imprisonment should be backdated to commence after the expiration of the previous non-parole period, i.e. from 14 April 2024, "or slightly before". The Crown did acknowledge that a finding of special circumstances might be required on account of accumulation and in order to preserve "as closely as possible" the statutory ratio.
I should note in passing that absent a finding of special circumstances and an adjustment of the statutory ratio to the sentence imposed, the inevitable outcome would be an overall ratio exceeding 75%.
The Crown placed considerable reliance in an outline of supplementary submissions, on the observations of Price J in Darrigo v R in which the Court of Criminal Appeal held that the factual scenario of grabbing the buttock and vagina region of the 4-year-old female child sitting on the floor of the shop in Dubbo, which touching occurred underneath her dress but implicitly on the outside of her underwear, was assessed as "beyond the mid-range of objective seriousness." The Crown submitted that this operated as an appropriate comparable case where the notional starting point prior to discount for a single offence pursuant to s 61M(2) was 8 years. The Crown submitted that there should be partial accumulation to reflect the fact that there are four offences in the present matter.
The Crown referred to the observation by Price J in R v Cattell [2019] NSWCCA 297 at [162] that: "the totality principle is not to be used as a cloak of convenience so as to impose a manifestly inadequate sentence." Cattell, of course, was a successful Crown appeal against an inadequate sentence imposed on a former priest, who had numerous prior sentences. Grant DCJ had imposed an aggregate sentence of 2 ½ years with a non-parole period of 9 months with respect to seven separate offences involving two victims, which offending had taken place on different occasions over a period of approximately 23 years between 1968 and 1991. Indicative sentences of between 4 months and 8 months had been specified by the sentencing judge with respect to six of the offences, and an indicative sentence of 18 months for one of the offences. The Court of Criminal Appeal ultimately resentenced to an aggregate period of 3 years with a non-parole period which was doubled from 9 months to 18 months.
Price J had also made observations at [152] of the difficulty in applying the totality principle where earlier sentences which were relevant had expired and s 25AA did not apply. In the present matter of course, the sentences in relation to conduct against the other victim, Barbara Lewis, had well and truly expired and obviously s 25AA(1) had no application in sentencing for the offending against that victim.
In the Crown's submission, an effective non-parole period as suggested by the defence of 2 years or less would be using totality "as a cloak of convenience" to impose a manifestly inadequate sentence. The Crown submitted such a minimal increase in the effective non-parole period, that is of an additional 8 months to 12 months, would undermine public confidence in the administration of justice and would not avoid the suggestion that the offender had received "some kind of discount for multiple offending." See John v R [2015] NSWCCA 58.
The Crown also submitted that with respect to the ratio between a head sentence and a non-parole period that "focus should not be solely on the percentage proportions - the actual periods are equally, and probably more, important." The Crown cited R v Tuuta [2014] NSWCCA 40 in support of this submission.
I am constrained to observe that the apparent statement of principle referred to by the Crown in R v Tuuta does not appear to be contained in, or to flow from, that judgment. Tuuta was a Crown appeal against the inadequacy of a sentence imposed by Judge Craigie SC. Tuuta had pleaded Not Guilty to an offence of causing grievous bodily harm to a female victim with intent. The offence carried a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. The offender, who was 19 at the time of the offending and 21 at the time of sentence, had been on parole at the time of the offending. He had previously been sentenced to 4 years with a 2-year non-parole period following a finding of guilt after a jury trial at Griffith where he had similarly been convicted of an offence of wounding with intent to do grievous bodily harm contrary to the same provision of the Crimes Act 1900.
The offending before Judge Craigie SC involved an unprovoked and vicious attack on a female who had been waiting at a bus stop at approximately 2 am or 3 am when she was approached by the offender who punched her approximately 6 times causing a substantial broken jaw. The bilateral fracture required the insertion of titanium plates. Judge Craigie SC imposed a sentence of 6 years with a non-parole period of 3 years, 7 months and 6 days. The judge at first instance found any claims for leniency were "near to non-existent" and that there was only a "flicker of encouragement" with respect to his prospects for rehabilitation. The sentencing judge, notwithstanding those findings, found special circumstances and determined to vary the statutory ratio so as to provide for a longer period of supervision. The ratio between the specified non-parole period and the head sentence was approximately 60%.
The Court of Criminal Appeal upheld the Crown challenge to the inadequacy of the sentence. Bellew J, Bathurst CJ and Hoeben CJ at CL agreeing, said that circumstances which were not properly regarded as being "special" should not be elevated into that category (at [57]). Bellew J said that there must exist significant positive signs which show that if an offender is allowed a longer period on parole, rehabilitation is likely to be successful, and that "this is not merely a possibility." In the event, the Crown appeal was allowed and the respondent offender was sentenced to a head sentence of 6 years and 8 months. The non-parole period, reflecting a ratio of 75%, was fixed at 5 years imprisonment.
To the extent that the Crown submissions implicitly advocates that the actual period to be served is as important "and probably more important" than the percentage proportion, I reject that submission in the context of the present matter. In my view, the statutory ratio and any variation from it are matters of significance both with respect to the imposition of a particular sentence and even more so in circumstances where the principle of totality will require the Court to stand back and look at the overall effect of the totality of the sentences to be served.
The Crown did acknowledge in the written submissions that Bugmy factors had been enlivened and that there is some evidence of remorse. However, the Crown submitted that the degree and genuineness of the remorse is untested and the circumstance that the offender elected not to give evidence in the sentence proceedings reduces the weight to be given to his self-reported insight and remorse.
I do note in cases such as R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369, that the Court needs to be careful with untested expressions of remorse.
The quotation attributed to Tuuta to which I have made particular reference is in fact to be found in the judgment of R A Hulme J in Caristo v R [2011] NSWCCA 7. In that case, leave to appeal against a sentence imposed by her Honour Judge Tupman with respect to drug offences was refused. The challenge that was brought had been to the length of the non-parole period. The only basis upon which the appeal was pressed was the ratio between the head sentence of 8 years and 6 months with a non-parole period of 6 years for what was described as the ecstasy offence.
In refusing leave to appeal, R A Hulme J gave examples where the ratio to be applied after a finding of special circumstances might be viewed differently depending upon the length of the head sentence. His Honour gave the "obvious example" that where a total term was 2 years and it was felt necessary to allow 12 months on parole, a ratio of 50% after a finding of special circumstances might be considered appropriate. However, his Honour went on to say: "But it is almost impossible to imagine 50 per cent being appropriate where the total term is 20 years so as to allow for a 10 year parole period." It was in that context that his Honour thought that the actual period involved was equally and probably more important than a focus simply on the percentage proportion after a finding of special circumstances. When viewed in that context, the statement by his Honour is, with respect, completely understandable.
In Caristo, Judge Tupman had applied a ratio of slightly more than 70% in allowing for a parole period of 2 years and 6 months. The submission in the Court of Criminal Appeal by Mr Odgers SC on behalf of the applicant that the length of the non-parole period should be increased by 6 months was described by R A Hulme J as "tinkering".
The Crown's written submissions also dealt with the risk of institutionalisation. The Crown made reference to cases in which the fact of institutionalisation leads to an increased risk of re-offending. The Crown also submitted that the Court may find that institutionalisation had in fact already occurred. The Crown submissions, as I read them, imply that institutionalisation was not a relevant factor in the sentencing exercise and that it should not diminish the length of an appropriate sentence.

COMPARATIVE CASES AND STATISTICS

As I have indicated, the Crown utilised the circumstances in Mr Edwards' earlier appeal to the Court of Criminal Appeal in R v Darrigo as a comparable case in suggesting an assessment of objective seriousness and also an appropriate point of reference for the sentence which was imposed. No reference has been made by either party to the "blunt instrument" provided by the Judicial Commission Statistics.
Whilst acknowledging the limited utility of the statistics, it is appropriate to observe that the aggravated offence committed with a child under 10 before the introduction of standard non-parole periods reveals only 15 cases. Two of those resulted in Community Correction Orders while the other 13, or approximately 87%, resulted in terms of imprisonment. The head sentences range from 6 years (3 cases, or 23.1%) down to a head sentence of 18 months for one case. The majority of cases (8 cases, or approximately 62%) resulted in head sentences between 2 ½ years and 4 years. Aggregate non-parole periods range between 12 months and 4 years. Terms of sentence for the principal offence only range between 18 months and 4 years as a head sentence, and between 12 months and 2 years with respect to non-parole periods.
These statistics are clearly of limited utility. Given the history of prior offending and the overarching significance of appropriate consideration being given to the principle of totality, comparative sentences are more than normally of little assistance. I do not in the circumstances make reference to specific judgments which may be located by means of the hyperlink in the Judicial Commission Statistics.

TOTALITY

The principle of totality has been long recognised as an important consideration in the proper exercise of the sentencing discretion. In giving consideration to a Crown appeal against the inadequacy of sentence in circumstances where the sentencing judge dealt with two offenders who faced a multiplicity of charges arising from a break and enter into premises accompanied by robbery of one of the residents and then the sexual assault of that resident, Street CJ described what was referred to as the "principle of totality". In R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260, the Chief Justice said: "The learned sentencing judge properly recognised that what has been called the principle of totality necessitated some telescoping of the individual terms. The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order."
The Chief Justice in Holder was giving a more expansive definition of the principle which he had applied in the earlier case of R v Todd [1982] 2 NSWLR 517. Todd had in fact been determined in 1979 and involved an offender who had committed offences in New South Wales before subsequently being arrested and charged with offences committed shortly after in Queensland. Todd had then been sentenced in Queensland to a term of imprisonment, and on the expiration of his non-parole period, he was extradited to NSW where he was sentenced for the offences which had been committed in NSW shortly before his travel to Queensland.
The learned sentencing judge in the District Court had imposed a head sentence for the NSW offending which was an appropriate length had the matters been being dealt with on their own, absent consideration of the time which had elapsed and the length of the term served in Queensland. The sentencing judge had however substantially reduced the cumulative non-parole period specifically to recognise the length of time which had already been served in Queensland.
Street CJ, with whom Moffitt P and Nagle CJ at CL both agreed, said at 519 that it would have: "been proper, indeed necessary, for a second New South Wales judge sentencing for the Sydney crimes at a hearing later than that on which the appellant had been sentenced for the Queensland crimes to pay regard to the totality of the sentences involved."
Sir Lawrence said: "It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality…"
The Court proceeded to determine that the principle of totality not only played into a determination of the non-parole period, but also should be relevantly considered with respect to the head sentence.
Several years later, the High Court specifically approved the statements regarding the totality principle which had been articulated by Street CJ in Todd. In Mill v The Queen [1988] 166 CLR 59, the High Court dealt with an appeal which had substantial similarity to the circumstances before the New South Wales Court of Criminal Appeal in Todd.
Mill had committed two armed robberies in Victoria before travelling to Queensland where he committed another armed robbery. Following his return to Victoria, he was arrested and charged with the Victorian armed robberies. He was ultimately sentenced to 10 years imprisonment with a non-parole period of 8 years in Victoria. Upon his release to parole in Victoria, he was returned to Queensland where he was tried for the Queensland offence. The sentencing judge took a similar approach to that which had been taken by the sentencing judge in Todd which approach led to the imposition of the "customary" head sentence but a substantially reduced non-parole period so as to recognise the time served inter-state. A decision of the Queensland Court of Criminal Appeal in R v Jenkyns (Court of Criminal Appeal (QLD), 11 June 1986, unreported) had followed the first instance approach by the sentencing judge in Todd, rather than the principled approach articulated by Street CJ in the Court of Criminal Appeal.
The High Court delivered a joint judgment. Their Honours, Wilson, Deane, Dawson, Toohey and Gaudron JJ, referred to the various appellate jurisdictions which had cited Todd with approval but noted that confining the totality principle to the non-parole period, rather than also to the head sentence, had been the outcome in Jenkyns and a number of other cases. The full bench in the High Court said at [65] to [66]: "In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time."
However the Court went to explain that the principle was not confined to the fixing of a non-parole period but applied also to the fixing of a head sentence.
Significantly, particularly in light of s 47(2) of the Crimes (Sentencing Procedure) Act which permits the backdating of sentences, the High Court in Mill said at [66]: "In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd."
Since these early statements of principle, there are a multitude of cases at an appellate level which examine the application of the principle of totality in a wide variety of different factual circumstances.
The Crown in the present matter made reference to R v Cattell on a number of different bases. Cattell is significant in that the leading judgment of Price J gave extensive and appropriate guidance with respect to the significance of delay in an historical child sexual abuse case. His Honour also made observations with respect to the principle of totality and the need to step back and re-look at a sentence which is in contemplation with a view to assessing whether the sentence is appropriate in all of the circumstances. I have previously undertaken a detailed analysis of the factual circumstances in Cattell and also the other cases referred to in the judgment of Price J. I do not repeat the detail of that extensive analysis which is to be found in R v DW (No 1) [2020] NSWDC 461 at [130] to [161]. Ultimately in Cattell, the sentence at first instance of 30 months with a non-parole period of 9 months was increased to a head sentence of 36 months and, adopting a ratio of 50% for special circumstances, a non-parole period of 18 months.
In the present matter, considerations of the principle of totality require consideration of potentially two different perspectives. One approach might be to give consideration to what his Honour Judge Hunt may have done to the aggregate sentence which he imposed in the event that the four matters before this Court presently had been part of the 17 offences in respect of which his Honour passed sentence in 2022.
Of course, his Honour in determining the aggregate sentence which he imposed, needed to look at the sentence through the prism of a consideration of what Judge Arnott SC would have done had all matters been before Judge Arnott SC.
In circumstances of continuous custody since August 2012, the Court in the current matters must give consideration to the overall effect, that is the totality of the time to be served in custody and not lose sight of the relativity by reference to the ratio between the minimum time to be served and the ultimate determination on the length of the head sentence.

COMMENCEMENT DATE

Following the sentence proceedings in Wagga Wagga on 8 August 2024 judgment was reserved. On 20 August, the Court forwarded an email to both parties raising a number of queries. Those queries included an enquiry with respect to the fact that the present victim's mother had confirmed that the child had been touched in the area of her vagina as long ago as July 1995. The Court sought information as to when the statement from the current victim had first been obtained by police. I note that the advice provided subsequently indicates that there was a gap of almost 2 years between the taking of the statement and the laying of the charges.
The Court also raised an enquiry with respect to the fact that the offender had not been released to parole, notwithstanding his temporal eligibility. Those particular enquiries resulted in information being provided by the Crown, including the various Parole reports and recommendations to which I have already made detailed reference.
The Court also sought submissions from both parties with respect to the backdating of a sentence to a day before which sentence is imposed pursuant to s 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999. The detail of the email is set out in its terms, a copy of which will be marked for identification and kept in the Court file.
In particular, the Court sought submissions as to whether or not the ability to backdate to a "notional" date for the commencement of a sentence would permit a sentence being backdated to a date before an offender was arrested and charged with the relevant offence, but to a date when they were already in custody serving a sentence for other matters. In short, the Crown submitted that there was no impediment to a sentencing court exercising its discretion by backdating a sentence to a date prior to arrest. The defence, on the other hand, submitted in lengthy written submissions that although there was a very wide discretion, s 47 could not be interpreted as to be so broad as to permit a backdating to a date prior to arrest and charge.
The importance of a consideration of this question is underscored in circumstances where the experience of the Court has been a delay in the preferring of charges by police or prosecuting authority until shortly before a prisoner might otherwise have been eligible for release. In the matter before Judge Hunt, the charges with respect to the victim in that matter were laid approximately 3 ½ months before the expiry of the head sentence which was still being served after having been imposed by Judge Arnott SC.
As noted, in the current proceedings the statement from the victim was taken in November 2021 but charges were not preferred until April 2023.
The possibility of backdating a sentence to a date before arrest and charging to take into account a custodial sentence still being served was contemplated, subject to statutory entitlement, by the High Court in Mill. I have earlier referred to the particular passage at [66] which I restate: "In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd."
I should add that it's unclear as to whether or not the particular offending in Mill had been charged before the expiration of the sentence in the other state.
There is no doubt that s 47(2)(a) permits a sentence to be "taken to have commenced" on a day before the day on which sentence is imposed. Section 47(3) specifically mandates the taking into account of any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates. A combination of those sections has permitted the backdating of sentences to a "notional" date for the commencement of the sentence being a date when an offender was not, in fact, in custody. The Court of Criminal Appeal had repeatedly stated that the preferable course to adopt, where an offender had served a period of pre-sentence custody, was to backdate the sentence imposed by a period equivalent to the period of pre-sentence custody, rather than reducing the sentence imposed. In Wiggins v R [2010] NSWCCA 30, Howie J restated that "preferable course" and referred to a number of earlier authorities commencing with R v McHugh [1985] 1 NSWLR 588 where Chief Justice Street had stated that preferable course in clear terms. His Honour Street CJ had said at 590-599: "It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which the sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be backdated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order."
Howie J also referred to his own remarks in R v Newman and Simpson [2004] NSWCCA 102, 145 A Crim R 361, where his Honour had dealt with the position when pre-sentence custody did not continue unbroken to the date of sentence. His Honour had followed the practice of selecting a "notional" date being a date when the offender was not actually in custody to deal with such a situation. His Honour had said at [26] and [27] in Newman and Simpson: "[26] The difficulty arises in cases where, as here, the pre-sentence custody did not continue unbroken to the date of sentence. In such a case the court is faced with two options: it can simply state that the pre-sentence custody is being taken into account and reduce the sentence accordingly; or it can backdate the sentence even though the offender was not actually in custody on the date when the sentence is deemed to have commenced. Notwithstanding some doubt expressed about the latter practice in R v Sayak (NSWCCA, unreported, 16 September 1993), this Court has dealt with the matter in this way on more than one occasion. See R v McDonald (NSWCCA, unreported, 12 December 1995); R v Howard [2001] NSWCCA 309, and R v Phillips and Simpson [2002] NSWCCA 167. There is nothing in s 47 of the Act that would suggest that a court could not make such an order. [27] In my view, although there is an element of fiction involved in backdating a sentence to a period when the offender was not in custody, there is much to be said in its favour. Firstly, it preserves the denunciatory and deterrent value of the sentence to be pronounced. If a sentence is decreased by a substantial period already served in custody, it can have the appearance of being inadequate both to public perception and when it appears in the statistical information that is now so often relied upon by sentencing courts. This was one of the reasons expressed in McHugh for the adoption of the practice and it remains a highly important consideration."
Before leaving Wiggins and the explanation for the practice described by Howie J, it should be noted that McClellan CJ at CL and Harrison J both agreed with Justice Howie's judgment.
In Kljaic v R [2023] NSWCCA 225, the Court of Criminal Appeal found no error of principle in the approach taken at first instance by Colefax SC DCJ where his Honour had backdated a sentence by an additional 30 days on top of the actual time spent in pre-trial custody in recognition of the extra-curial punishment brought about by the restrictions and lockdowns during COVID. See in particular Wright J at [37] to [38].
It needs to be acknowledged that all of these applications of principle do not take backdating of a sentence to a date before the particular offenders were arrested and charged. In the proceedings before Judge Hunt, notwithstanding the short period before the expiration of the previous head sentence when the charges were preferred, it was common ground between the Crown and defence that the earliest date to which backdating could be taken was the date of arrest and charge.
In Almaouie v R [2021] NSWCCA 274, what had occurred in passing sentence at first instance by Bellew J was "taken" to be an error. Bellew J had sentenced the offender in that matter for firearms offences and also for a conspiracy to do acts in preparation for a terrorist act. With respect to the State firearms offences, his Honour imposed concurrent fixed terms of imprisonment, the longest of which was 12 months. His Honour had directed those sentences to commence on 18 December 2014. With respect to the conspiracy charge, his Honour had imposed a sentence of almost 19 years with a non-parole period exceeding 14 years. That sentence slightly overlapped the length of the sentence imposed for the firearms offences and was due to commence on 10 December 2015.
On an appeal against the severity of sentence, which, of necessity, had to succeed regarding the Commonwealth conspiracy offence for reasons which are irrelevant to the present consideration, it was apparent that the firearms offences sentences which had been ordered to commence on 18 December 2014, which erroneously was the day on which the search warrant had been executed and the firearms had been discovered. However, the offender had not been arrested and charged with the firearms offences until 9 January 2015. He had also not been charged with the conspiracy to commit a terrorist act until 10 December 2015.
Beech-Jones CJ at CL, as his Honour then was, said at [25]: "Ground 2 can be addressed first. It seems that his Honour commenced the sentence for the firearms offences on the day the search warrant was executed at the applicant's home that discovered the firearms rather than the day he was arrested and refused bail, being 9 January 2015. An error of that kind concerns the exercise of the discretion conferred by s 47(2) of the Crimes (Sentencing Procedure) Act 1999 to fix the commencement date of a sentence. Although they are related, the exercise of that power is distinct from the exercise of the power to determine, say, the length of the non-parole period conferred by s 44(1). The commission of such an error does not necessarily engage any obligation in this Court to re-exercise the sentencing discretion as opposed to adjusting the start date to address the identified error (Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] per Bathurst CJ). It does not do so here. The sentence for the firearms offences has now expired. Even though the applicant has raised this point, as it is his appeal and not the Crown's I see no warrant to increase his period in custody for those offences by three weeks. I do not propose to interfere with those sentences or adjust the commencement date for the conspiracy offence."
It should be observed that the Court appears to have presumed that there was an error in the commencement date of the sentence, which presumption would appear, with respect, well based. However, there does not appear to have been any specific consideration of the extent of the discretion conferred by s 47(2). As indicated earlier, in my view, the High Court adverted to the possibility of a statutory discretion being conferred to permit the taking into account of a continuous period of custody relating to other offending with the remarks that I have already quoted from Mill.
In the written submissions on behalf of the offender, reference has been made to Refaieh v R [2018] NSWCCA 72. That was a matter in which Judge Toner SC did not backdate the offender's sentence to take into account pre-sentence custody which had been served on remand in relation to an unrelated offence. Judge Toner was sentencing with respect to a drug supply charge in respect of which the offender had initially been bail refused but subsequently granted bail. He had later been charged with murder and returned to custody. Notwithstanding that he was in custody, bail refused on a murder charge, the solicitors for the offender mentioned the drug matter on a number of occasions in the Local Court but did not seek to change the bail status which was recorded as "bail granted - not entered".
The offender was subsequently acquitted of the murder. Toner DCJ declined to backdate the sentence ultimately imposed for the drug matters so as to take into account the period while bail was formally granted for the drug offence, the offender had been in custody, bail refused in respect of the murder. The Court of Criminal Appeal refused the appeal but relevantly, with respect to the breadth of the discretion provided by s 47(2), N Adams J, with whom Hoeben CJ at CJ and Lewis J agreed, appears to have determined that the discretion was wide enough to embrace a period of pre-sentence custody which was related to an offence other than the offence for which sentence was to be passed. Her Honour said at [82]: "The discretion under s 47(2) of the Sentencing Act is broad. It would have been open to the sentencing judge to have backdated some or all of the third period in the exercise of his sentencing discretion. Had that approach been taken, the practical result would have been that the applicant would not have spent time in custody for an offence in relation to which he was subsequently acquitted. Just because it was open to his Honour to exercise his discretion differently, and that other judges may well have done so, it does not follow that House v R error has been established in the approach taken in this matter."
However, it needs to be again acknowledged, that that period of custody for the different offence was during a period of time after the offender had been arrested and charged for the matter for which he subsequently stood to be sentenced.
In Richards v R [2023] NSWCCA 107, originally relied upon by the Crown in the present proceedings for a different reason, Adamson JA, Beech-Jones CJ at CL and Price J agreeing, said at [76]: "Section 47(2)(a) of the Act provides that a court may direct that a sentence of imprisonment commence on a day prior to the day on which it is imposed. Section 47(3) provides that, in deciding whether to backdate, a court is to take into account pre-sentence custody (which must be taken into account under s 24(a) of the Act). Further, back-dating may also be used to give effect to the totality principle, where, as here, at the time of sentencing, the offender is serving a sentence for other offending: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 (McHugh J); [1997] HCA 26."
In my view, absent the breadth of the discretion in s 47, a Court may reduce an otherwise appropriate head sentence and similarly find special circumstances and adjust the appropriate length and ratio of a non-parole period so as to take into account the principle of totality. However, the preferable course to adopt, for the reasons set out in Wiggins and the other cases to which Howie J referred, would be to impose an appropriate length of sentence and then to backdate the commencement date into the pre-existing period of unbroken custody, notwithstanding the sentence previously being served was for a different offence and that the charge for the current matter had not yet been preferred.
In my view, it is only in the circumstances contemplated by the High Court in Mill, and which confront the present offender, that such an approach would be appropriate. The statutory discretion in s 47 was not available in determination of the interstate offence in Mill.
However, in the event that it is determined that there is a jurisdictional difficulty in adopting such an approach, I propose to indicate the sentence which I would otherwise have imposed if backdating is not permitted to the extent that I have described.

CONSIDERATION

As both parties have recognised, this is a difficult sentencing exercise. The Court is required to sentence in accordance with sentencing patterns and practices at the time of sentencing as a consequence of s 25AA(1) of the Crimes (Sentencing Procedure) Act 1990. That section, which I acknowledge and will apply, follows the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse in the Final Report presented in December 2017.
The offending conduct occurred in 1994 or 1995 and some of the occasions occurred at the same time, or at least the same time period, as offending against the present victim's cousin, who made effective immediate complaint. Those matters were dealt with in relation to that other victim and the sentences imposed by Judge Bellear in 1998. In the ordinary course, questions of parity would need consideration.
The question of delay also requires some consideration. In Cattell, the circumstance of the delay was dealt with by Price J in a manner which recognised that the offender had had the benefit of the non-disclosure of the offending for a considerable period of time.
However, I do take note of the remarks of Judge Haesler SC in R v SW (District Court of New South Wales (Wollongong), 10 September 2018, unreported). In considering s 25AA, his Honour indicated that he did not believe that he was obliged to read into s 25AA that sentencing patterns and practices at the time of sentencing prohibited him taking into account, as general principle would require, that the offences in that matter were committed by a child on another child many years earlier.
In the present matter, the offender was not a child at the time of the commission of the offences. However, the effect of delay has been that notwithstanding him having been sentenced on a number of occasions for other offending, the Court must now specifically take into account the continuing effect of the abuse of young children in a fashion which may not have been as fully recognised at the time of the sentencing of the offender by Judge Bellear.
Notwithstanding the delay in pursuing the complaint, the Court must give appropriate recognition to the dignity of the victim in the fashion described by the High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38. As I earlier noted, relevant weight needs to be given to the victim impact statement.
There is no doubt that prospects of rehabilitation must remain guarded notwithstanding the assessment of "moderate risk" of future re-offending in the more recent assessment by Dr Dornan.
I have had regard to the historical psychological assessments and the earlier assessments of a high-risk of re-offending.
I accept the opinion of Dr Dornan with respect to the advancing age of the offender and I have also endeavoured to balance the relevant consideration of the principle of totality having regard to the earlier sentences by both Judge Arnott SC and Judge Hunt. I also take into account the more onerous conditions in custody in light of both the mental health issues identified and the physical medical issues identified in the material which has been tendered, to which I have only made reference in general terms.
I also note that pursuant to the relevant statutory provision, the offender on his release, will be subject to the conditions of the Extended Supervision Order by virtue of the relevant section.
I take into account the maximum penalty as a yard stick in the determination of appropriate sentences. I also take into account the entitlement of the offender to a 25% discount which will be reflected in the indicative sentences.
I propose to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999.
The indicative sentences are as follows: 1. Sequence 1 (Guava Tree): 3 years 2. Sequence 2 (Kids Chair): 4 years 3. Sequence 3 (Bath): 3 years 4. Sequence 4 (Trailer): 4 years.
The aggregate sentence will be a period of 7 years. That sentence will be backdated to commence on 14 April 2022. As a consequence of the need to have regard to the statutory ratio in relation to the overall effective sentence which dates from his entering into custody on 2 August 2012, there will be a non-parole period of 3 years. As Judge Hunt said in passing sentence on 1 September 2022, that period has been specifically selected in order to maintain an appropriate statutory ratio. The offender will accordingly be eligible for release to parole on 13 April 2025. The additional term of 4 years will accordingly expire on 13 April 2029.
In the interests of complete transparency, I acknowledge that his Honour Judge Hunt endeavoured to maintain "in broad terms" a ratio of the effective overall head sentence and the effective overall non-parole period of "about 75% of the total effective term imposed on him". I acknowledge, as the Crown points out with precision, that the actual ratio in the terms imposed by his Honour Judge Hunt are, in fact, 77%. I have similarly undertaken some slight rounding and have selected the start date for the aggregate sentence so as to effectively increase the head sentence by 18 months from its current expiry date of 13 October 2027 and an increase of the date for eligibility for parole by 12 months from when he was eligible for parole in April 2024.
Ignoring a period of some 12 days with respect to the commencement of the original sentence on 2 August 2012, the ratio between the effective non-parole period and the overall effective head sentence will now be approximately 76%. That is an intended consequence of the variation between the non-parole period and the aggregate sentence which I am imposing.
I should indicate that were I to have come to the view that there was a jurisdictional impediment to backdating the sentence to 14 April 2022, I would in that circumstance have imposed an aggregate sentence of 6 years with a non-parole period of 2 years and commenced the starting date of the sentence from 14 April 2023, that is, a date after the offender was charged with the present offences.

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 October 2024

Crimes (Serious Sex Offenders) Act 2006(NSW)

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