R v Farrell

District Court of NSW|2022-11-18

on has been removed from this version of the judgment to comply with the statute.

SENTENCE - EX TEMPORE REVISED

Facts for sentence

The jury, by its verdicts, obviously accepted the account given by George and rejected Farrell's evidence at trial.
As a young boy, George would visit his grandmother's home where his uncle also lived. He said that when they were alone together, Farrell would touch his crotch over his clothes and massage his penis. This activity began when George was aged about five. This evidence did not found any count at trial. It was led to give context to the counts.
After his mother's death, Farrell and his older brother moved to another address. Farrell was his brother's carer. George and his sister would visit regularly and often stay overnight on weekends. The children would generally sleep on fold-out beds in the lounge, but on occasions George would fall asleep while watching TV in Farrell's bedroom.
Six (6) acts were particularised as counts. Four (4) at those premises and two (2) at another premises to which I'll soon refer. George told the jury that these were the events he was able to remember and isolate but there were many other, similar incidents. I note I am only sentencing for, the specific matters where guilty verdicts were returned.

Count 1

One time, when George was 13 or 14, and in Farrell's bed, he woke up on his side with Farrell also on his side facing away from him, rubbing his bum against George's penis. Both of them were fully clothed and George was half asleep.

Count 2

George then dozed off but woke lying on his back with his penis out. Farrell was sitting on his legs sucking George's exposed penis. He remembered feeling pain from Farrell's broken tooth. "It was painful and a bit irritating", he said. The act took about 20 minutes but to George - "it felt like an eternity". Farrell then "just stopped". George put his penis away when he could.

Count 3

After that, Farrell grabbed George's hand and pulled it to touch his own penis. George felt Farrell had an erection and instinctively pulled his hand away.

Count 4

On another occasion, George was sleeping in the loungeroom with his sister. He woke up that night to find Farrell was sucking his penis. This went on for about 20 minutes. It hurt. George was shocked and disgusted. He was scared because he had to wait until Farrell was done and he couldn't do anything about it.
This activity, George said, became a regularly occurring thing. The only conclusion I could reach is that it was done by Farrell for his own sexual gratification.

Count 5.

After his brother passed away, Farrell moved to a unit in Brownsville. George's sister, who was closer to the other uncle, stopped staying over. George would visit, sleeping on a mattress in the loungeroom in front of the TV. George told the jury the first time he stayed over he woke to Farrell sucking his penis. He was "scared," "amazed," "sad" and "shocked" that these acts were happening. He said "it just went on for a while, you know, 20 minutes because he was just waiting for something to happen and I never gave him a reaction. I never ejaculated."

Count 6.

The last time, George said, anything happened, George said he was staying at Farrell's. They watched a Japanese "Ghibli" style cartoon movie. Again, he woke up to Farrell sucking his penis. It hurt. He was shocked that it had happened again. George felt he couldn't do much "until, well, he was satisfied, I guess, with whatever he was trying to accomplish or he just gave up."
George told the jury he saw Farrell as "like, like a best friend. He was just someone I could talk to about hard things going on. He never got mad. He was always understanding towards me". When asked about the sexual things done to him, he said "I hated all of it. I was really sad that it had even happened. I was really sad. Disbelief, really. I never thought he would do that and I was just really sad about it. Like, I was heart-broken."

Objective seriousness

Every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on any sexual activity with a child: Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1; Chamseddine v R [2017] NSWCCA 176. The law is strictly enforced and is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual exploitation of a child is serious and is treated seriously by the courts. The guidance offered by maximum penalties and standard non-parole periods makes that clear.
Every sentence must be appropriate and proportionate to the gravity of the crimes considered in the light of their objective circumstances. The objective seriousness of particular offending must be determined in the light of the entirety of the facts and circumstances in question.
In assessing the objective seriousness of individual matters, the act or acts done, the character of the sexual acts and the degree of physical contact involved is of significance. Other matters, bearing upon the assessment include the age of the child relevant to the range and compassed by the offence, the age difference between the perpetrator and the child and the relationship with the perpetrator to the child.
As there is no hierarchy of seriousness of kinds of sexual intercourse, I focus on the nature of any relationship between the offender and the complainant and their respective ages. The younger the child, the more serious the offence. Force or coercion, the extent of any assault, including the degree and nature of penetration must be considered, as can the time over which the acts were committed and whether any pain, physical hurt or harm was caused the child. Some degree of psychological harm is generally presumed.
Here, there were four convictions for sexual intercourse offences. Each followed a similar pattern of oral intercourse initiated while the child slept and taking an estimated 20 minutes.
For counts 2 and 4, the offender took advantage of a child in his care aged 13 or 14. He took advantage of his relationship as an uncle and the fact the child looked up to him for support and friendship. He exploited that relationship. His acts caused hurt and both physical and emotional pain. His acts were for his own sexual gratification. They took some time. He exploited the child's helplessness. Each act was a serious example of its type.
For Count 5 the child was older but he was equally vulnerable and had presumed his age might protect him from predation. He was wrong. Again, not just his physical self was violated but, also, his sense of trust.
The final incident occurred while George was older, but he was still under the care of his uncle and, again, his vulnerability was taken advantage of.
The two indecent assault matters occurred on the same night. George was only 13 or 14 and in his uncle's care. Each involved a breach of trust. The acts form part of, of course, conduct, together with count 2. The first rubbing while clothed was the least serious. Had it stood alone, it might not have justified a custodial sentence, but it did not stand alone and was preliminary to the much more serious offending that followed.
The second incident involves skin on skin contact and the pulling of a child's hand. It was more serious, but it was of short duration. The time over which the individual act took place is not an entirely irrelevant consideration, as all the circumstances, including degree of physical contact have to be considered. It is one objective fact that must be considered as it goes to, as I said, the degree of physical contact but it is important to note that: 1. The offence of indecent touching is made out by touching to any degree and 2. While an extended episode of touching may serve to elevate the objective gravity of an offence, the converse does not apply. 3. Duration is often irrelevant to the shock and distress of the experience: SB v R [2022] NSWCC164; R v Lau [2022] NSWCCA 131; Cowling v R [2015] NSWCCA 213.
Each offence involved an abuse of trust, trust George had in his uncle and whose home he was a guest. I'd also note that count 6 has an element "under authority." Abuse of trust and authority are distinct concepts although often arising out of the same facts: MRW v R [2011] NSWCCA 260 at [77]. Care must be taken and I must be cautious of giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor to avoid double-counting: MRW at [78].

A dispute about where in the range sexual assault matters falls.

Mr Dayeian, who appeared at trial and on sentence submitted that the first touching offences fell at the lower end of objective seriousness and the second below mid-range. He submitted that each sexual intercourse offence could be characterised as mid-range.
Ms Hughes, Solicitor Advocate for the Director of Public Prosecutions, who appeared at trial, accepted that the indecent assault matters could be regarded as falling to the lower end of the range of objective seriousness, however, she submitted that, given the age disparity, the fact the victim was asleep, the prolonged duration of the events and the level of pain and abuse of trust, each sexual intercourse matter fell above the mid-range.
In matter such as this, Courts have two legislative guideposts. The maximum sentence and the standard non-parole period. I must admit to having some difficulties with reaching a subjective opinion about where any crime might fit in a notional range of objective seriousness. Such assessments often draw a judge's attention to the penalty range available and encourage them to engage in a staged sentencing calculation. "What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act." R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 13 at 131.
Unlike statistical distance calculations, there are no objectively fixed points to measure a range for objective seriousness.
I note that, referring to the standard non-parole period requirements, the High Court in Muldrock v The Queen; 244 CLR 120; [2011] HCA 39 made a very pertinent comment at [29]: "A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to "mak[ing] a record of its reasons for increasing or reducing the standard non-parole period" is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences:"
Sentencing is intuitive, it is not a strictly logical process, and it is not a mathematical process. Not every matter urged on the judge has to be or can be fitted into categories. Human behaviour and characteristics are too varied. The sentencing exercise involves: ""A synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment, usually expressed in time or money." Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14, at [24].
A Court of Criminal Appeal has noted recently that where a matter fits in a range is a contested issue, and where the objective seriousness of the offence forms a significant part of a judge's evaluation of what would be appropriate sentences, judges are "obliged to resolve the disputed issue as to where this particular offence fell on the spectrum of objective seriousness.": Owen v R [2022] NSWCCA 214 at [49].
A sentencing judgment does not always require the resolution of each issue or point put in contest. For the reasons outlined above, and because sentencing is ultimately intuitive, sentencing is unlike many other determinations a judge must make. But, as the High Court made clear in Muldrock, a judge must give reasons for their decision: "Full statement of reasons for the specification of non-parole periods either higher or lower than the standard assists appellant review and in this way promotes consistency in sentencing. May also increase public awareness of the sentencing process. At 30."
Out of deference to the opinions expressed in Owen v R, I will do my best to resolve the issue put in dispute.
So varied are the circumstances that make up s 61J Crimes Act offences that to determine what would constitute an abstract offence in the middle of the range of objective seriousness may be impossible. But, sadly, there is nothing unusual in the facts described by George and accepted by the jury.
There are many circumstances in which a child's vulnerability can be exploited and sleeping is a common one. While 20 minutes seemed to George like an eternity, it, too, was not unusual and was, in any event, an estimate. The age disparity and exploitation of a trust relationship, again, was not unusual. While there is no hierarchy offending or forms of penetration, reactions to abuse do not depend on how sexual intercourse occurs. There was no penetration of the child. The fact that the child was older in counts 5 and 6 requires I distinguish those offences from the earlier ones. In all the circumstances, I find each offence falls within the middle of the range of objective seriousness, noting that it is a range that must be considered, not a fixed point in a range.

Victim impact

The effects on a child of sexual abuse depends on many factors; age and gender of the child, age and gender of the perpetrator, the nature of the relationship between the child and the perpetrator and the nature, number, frequency and duration of the abuse experiences. The symptoms vary as well. The diversity of abuse experience means that the outcomes of child sexual abuse will also be diverse. So, too, will be behaviours following experiences of child sexual abuse. It is not uncommon to find adverse outcomes of child sexual abuse, such as post-traumatic stress disorder, depression, suicidality and sexual risky behaviour amongst young people who have been abused: The social dynamics and impacts of institutional child sexual abuse, D T Kenny, Judicial Officer's Bulletin, September 2017, Volume 29 No 8.
A Victim Impact Statement from George was tendered. A Victim Impact Statement must refer to harm a direct result of the offence: s 28 Crimes (Sentencing Procedure) Act. To the extent that the statement refers to other allegations which were not subject of charges or ventilated at trial I will set them aside. George's Victim Impact Statement provided him with an opportunity to draw to the court's attention the damage done to him and the sense of anguish which had been created by this offending: Director of Public Prosecutions v DJK [2003] VSCA 109 at [17] & [18]
In his statement, George told me about the impact of the offending on his everyday life. He told me that as he was young, he felt what was being was normal, but he was confused and did not know why it was happening. As he grew older, he realised it was "just wrong" but he didn't know how to say, "stop." He felt powerless. The acts led him to question his sexuality and become confused about sexual matters. He said what has happened has had an ongoing impact on him and has changed him. He finds it hard to sleep and he has trouble imagining ever being in a relationship. He feels broken. Sometimes he wants to die. He concluded, "If he hadn't have harmed me, I wouldn't feel this way and my family relationships would be better. It's changed me for the worst and I feel like it's ruined me."

Maximum penalty and standard non-parole periods

Section 62M (2) Crimes Act carries a maximum of 10 years' imprisonment and a standard non-parole period of eight years. The ratio between that maximum and the standard non-parole period has been subject to criticism, justifiably so. Section 61M2 and its standard non-parole period have now been repealed. But I have to apply it here. In BT v R [2010] NSWCCA 267, Justice RS Hulme described the relativity between the maximum and the standard non-parole period as "absurd" but the different Court of Appeal R v NJK [2011] NSWCCA 151 noted], "nevertheless, an eight-year standard non-parole period has been prescribed by the legislature and the Courts must give effect to i:." at [40.
Section 61J(1) has a maximum of 20 years' imprisonment and a standard non-parole period of 10 years.
Careful attention to maximum penalties and standard non-parole periods is required, not just because Parliament has legislated for them. Here both provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison between the instant case and other cases. That said, it is not appropriate to look here first to a maximum penalty or standard non-parole period and then proceed by making proportional deductions from them: Markarian v The Queen (2005) 228 CLR 357; [2005] HAC 25, at [30] and [31]. The standard non-parole period represents the non-parole period for an offence, taking into account only the objective factors affecting the relative seriousness of that offence that is in the middle of the range of seriousness.
I am required to give content to the standard non-parole period. In doing so, I am required to assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39 Tepania v R [2018] NSWCCA 247 at [103] to [120].
However, as the High Court and Markarian and Muldrock v The Queen made clear, neither can I engage in a staged approach to sentencing. A process of comparing and contrasting the actual offence with the abstract one is not necessary, nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non-parole period. Tepania at [103] to [120].

Subjective case

Farrell was born in 1955. He is now 67. He was, until he committed these offences, a person of good character. His prior good character remains a relevant factor because apart from this offending, which was very specific to the complainant, he has demonstrated the capacity to lead a normal, law-abiding life. It is highly unlikely on release he will be in a position to ever reoffend again.
Apart from two days in custody following his arrest, he has never spent time in gaol before. His sentences will start from 5 July 2022. He is presently being housed on Special Management Area Protection (SMAP). He had to endure quarantine on first entering custody and other measures designed to minimise the risk of spread of COVID infection. He has suffered lockdowns where he is regularly confined to cells. And it is expected this will continue while ever the risk of infection is present. He may suffer restrictions on his capacity for visits and on entry into programmes.
He suffers from several different ailments, including high blood pressure and heart problems. These will make his time in custody harder than a prisoner without such conditions. These conditions, together with his age and mental health problems make him more vulnerable and at risk of physical harm than younger, fitter inmates. His psychologist notes in addition to potential safety risk issues, it is considered likely his mental health will deteriorate in custody, resulting in an escalation of his symptoms of anxiety.
I do not ignore the lived experience of gaols. Over the last two years, I have heard from a number of recidivist prisoners that gaol now is much harder than it has ever been.
Farrell grew up in the Wollongong area as one of nine children. His father died when he was eight. His mother struggled as a single mother. He lived with his mother, and then sister and brother, prior to their death. Each death was difficult for him. Since his brother's death in 2018, he has been living alone, but he had, and still has, family support. He attended school locally, but he left at the end of year eight to commence work to help support his family.
By the time he was 27, he was unable to continue to work due to issues relating to his anxiety. He reports having no social connections outside of his family since then. His long history of anxiety that will taken into account. He has problems in crowded spaces. His symptoms have escalated over time.
He has never been in a relationship and has very limited sexual history. He has been effectively celibate all his life. He reports no drug or alcohol problems.
He was seen and interviewed by Ms North, a forensic psychologist. Her report has been of assistance to me. It is uncontroversial and did not put forward self-serving statements by Mr Farrell. To the contrary. The report was prepared on the basis of the prosecution facts at trial.
Ms North, in her conclusions, did not take into account Farrell's maintenance of his innocence. He still maintains his innocence. That is his right and he is not to be punished for it. All it means is that he has lost the benefit often given to those who plead guilty at an early opportunity and/or express remorse.
In Ms North's opinion, Farrell meets the diagnostic criteria for agoraphobia and presents with traits consistent with a mixed personality disorder. He does not report experiencing significant distress in relation to social isolation.
She noted some risk factors for sexual offending. They include social anxiety; indicating impairments in social interactions that may lead to social isolation and loneliness. Ms North recommends intervention to explore any existing risk factors and his psychological issues, noting he is suitable for treatment.
Based upon the findings of guilt, she suggests that as he engaged in inappropriate sexual behaviour with an underaged male this indicates he may meet the criteria for paedophilic disorder. He will need to be referred for assessment by the sex offender programmes run by Community Corrections. However, he may not meet the criteria for such programmes because her scoring, on the relevant testing, is low. Nevertheless, he may be suitable for engagement in individualised treatment provided by a correctional psychologist. That treatment should aim to address his risk and mental health issues concurrently.
When released to the community, Farrell will benefit from referral to forensic psychological services for treatment and risk management. It is recommended he engage with a psychologist in the community specialising in sex offending.

Submissions

Ms Hughes took me to the facts derived from George's evidence, which the jury obviously accepted. She reviewed general principles in sentencing for matters such as this and she noted the abuse of trust and position of authority. In her submission, s 21A(5A) Crimes (Sentencing Procedure) Act is enlivened and less weight should be given to the offender's good character. With respect, George had access to his uncle because he was a relative, not because he was a person of good character. I do not believe s 21A(5A) is applicable in these circumstances.
Mr Dayeian, in response, accepted that there was little difference in expedition of principle between the prosecution and defence in their other submissions. The differences being s 21A(5A) matter and where the matter fell in the range of objective seriousness.
He drew my attention to the absence of aggravating features such as threats or violence. And he drew my attention to the mitigating matters in the personal history of the offender to which I've referred. He urged leniency, noting the offender's age and other vulnerabilities, which will mean his time in custody will impact more harshly on him by comparison with other offenders.

Structure

Individual sentences must be indicated. There must be some accumulation to reflect the number and duration of the offending. I am required, as I'll be imposing an aggregate sentence, to indicate an appropriate sentence for each offence and a notional non-parole period. I have to structure the sentence such that the overall aggregate sentence is just and appropriate for the totality of the offender's crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63; Postiglione v The Queen (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41
I note that public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending. This is particularly so where the offences are discreet and separate but of less relevance where the matters form part of course of conduct such as here, for counts 1, 2 and 3: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at 164-165 [18].
The totality principle also works to recognise that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh, sometimes the word "crushing" is used. The severity of an offence is not simply linear. The severity of a sentence may increase at a greater rate than the increase of the length of a sentence, for example, a sentence of two years has greater impact on a prisoner than a sentence of one year, so far as it's punitive aspects are concerned: R v Clinch (1994) 72 A Crim R 301 at 306, applied in R v MAK [2006] NSWCCA 381.
Given the individual nature of each offence and the period of time over which the offending occurred, there must be some accumulation of penalty here and care must be taken. The severity of the sentence should not operate to destroy prospects of rehabilitation and reform. An extremely long sentence would be, in my view, be "crushing" in the sense that it would induce a feeling of hopelessness and destroy any expectation of Farrell having a useful life after release.
I note, however, that what is a proportionate sentence and what might be seen as a crushing sentence often depends on the perspective of the observer, whether they are the offender, the victim, the community or an appeal court: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.
Despite the convictions, Farrell still has support from pro-social family members. I trust that they will be able to keep in contact with him and provide him with support while he is in custody and on release. Having pro-social supports in the community is one important factor in ensuring a person's rehabilitation, particularly after a lengthy period in custody.
Farrell will need considerable assistance in adapting to normal community life on release. He has, in my view, a low risk of re-offending and has a demonstrated capacity, other than in the present matters, to lead a life without crime. His age, ill health, mental health problems and vulnerability in gaol must be considered, as his time in custody will be more burdensome than the average prisoner, if there is such a thing: R v Sellen (1991) 57 A Crim R 313; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, third dot point, at [177]. All those matters warrant a longer period on parole and a finding of special circumstances.

Synthesis

Mitigating factors will be given appropriate weight, but they must not be allowed to lead to penalties which are disproportionate to the gravity of the offending. Farrell offended against his nephew, a boy who looked to him as a friend. What he did harmed George.
Sentencing courts have an obligation to vindicate the dignity of the victims of sexual assault and sexual intercourse offenses and to express the community's disapproval of such offending. They do so by imposing retributive sentences. In each matter for sentence today, there is a community expectation that offenders will suffer punishment and the proper sentence marks the court's view of the seriousness of the crime and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205.

Orders

There will be indicated sentences. There will be a finding of special circumstances. 1. In relation to Count 1, Indecent assault person under 16 years of age (DV), as it carries a standard non parole period I indicate a sentence of one year with a non-parole period of nine months. 2. In relation to Count 2, Aggravated sexual assault - victim under the age of 16 years, I indicate a sentence of six years with a non-parole period of three years ten months. 3. In relation to Count 3, Indecent assault person under 16 years of age (DV), I indicate a sentence of one year six months with a non-parole period of one year. 4. In relation to Count 4, Aggravated sexual assault - victim under the age of 16 years, I indicate a sentence of six years with a non-parole period of three years and ten months. 5. In relation to Count 5, Aggravated sexual assault - victim under the age of 16 years, I indicate a sentence of five years with a non-parole period of three years three months. 6. In relation to Count 6, Aggravated sexual assault - victim under authority of offender (DV), I indicate a sentence of five years with a non-parole period of three years three months.
The aggregate sentence will date from 5 July 2022. The term of the sentence is nine years imprisonment. There will be a non-parole period of five years and ten months. Sentence will commence on 5 July 2022 making the offender eligible for consideration for release to parole on 4 May 2028. The balance of the term of three years two months, reflecting my finding of special circumstances, will commence on 5 May 2028, expire on 4 July 2031.
These offences require that the Crimes (High Risk Offenders) Act 2006 be explained to the offender. Mr Farrell what that means is that when you become eligible for parole or, if not granted parole, and your sentence expires, there is the possibility, if you are deemed to pose a risk to the community, that additional conditions, including, sometimes, additional periods in custody might be imposed upon you. Those are matters for the government for the day and not matters I can take into account when it comes to sentencing.

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: 23 February 2023

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