R v HW

District Court of NSW|2024-09-20

REMARKS ON SENTENCE

The offender was committed for sentence from the Wagga Wagga District Court on 15 May 2024 in respect of a number of child sexual assault charges, namely: H94127658 Sequence 2: Aggravated Indecent Assault (victim under 16 years of age), contrary to s 61M(2) of the Crimes Act, 1900 Sequence 4: Sexual Intercourse with a Child Under 10 years of age, contrary to s 66A(1) of the Crimes Act Sequence 7: Aggravated Indecent Assault (victim under 16 years of age), contrary to s 61M(2) of the Crimes Act, and Sequence 11: Sexual Intercourse with a Child between 14 and 16 years, contrary to s 66C(3) of the Crimes Act. H94202078 Sequence 1: Sexual Intercourse with Child Under 10 years of age, contrary to s 66A(1) of the Crimes Act Sequence 3: Sexual Intercourse with Child Under 10 years of age, contrary to s 66A(1) of the Crimes Act, and Sequence 5: Sexual Intercourse with Child Under 10 years of age, contrary to s 66A(1) of the Crimes Act.
In respect of Sequence 4 on H94127658 the offender asks the court when passing sentence to take into account two matters on a Form 1 document, namely one charge of Aggravated Indecent Assault contrary to s 61M(2) of the Crimes Act and a charge of Produce Child Abuse Material contrary to s 91H(2) of the Crimes Act. In respect of Sequence 3 on H94202078 the offender asks the court to take into account one matter on a Form 1 document, namely one charge of Intentionally Sexually Touch a Child, contrary to s 66DA(a) of the Crimes Act.
So far as the Forms 1 are concerned, when passing sentence I will need to ensure that I give proper regard and effect to the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002, otherwise known as the Guideline Judgment on Form 1 matters reported at (2002) 56 NSWLR 146.

Facts

The facts are before the court by way of a set of agreed facts. Given the multiplicity of offending with which the court is dealing I will deal with the seriousness of each offence after the recitation of the facts. Before going to the facts I will set out some basic principles so far as assessment of the seriousness of the matters are concerned.
Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]: "It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness".
In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]: "…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL)."
Generally, the younger the victim the more serious the offence will be regarded - see for example R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14].
In Bravo v R [2015] NSWCCA 302 Hulme J (Beazley P, Johnson J agreeing) said at [42]: "As was observed in R v Gavel : '[97] … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].'"
His Honour went on to say at [45]: "45 … Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, "the offence is less serious because it could have been more serious". As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: '[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.'"
In Mills v R [2017] NSWCCA 87, R A Hulme J (Leeming JA and Beech-Jones J agreeing), in addition to referring again to Grove J's statement in Saddler, said: "57 Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], "In plain language, it does not make what has been done by an offender less serious because it could have been worse."
Fullerton J in her judgment in R v PGM at [36] cites with apparent approval Kirby J in MLP v R (2006) 164 A Crim R 93 at [22], in that: "…The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable".
The offender was born on 22 November 1991. Accordingly in respect of the offending relating to TW (H94127658) the offender was 18 years of age in respect of the first incident (sequences 2 and 7) and 22 years at the second incident to which sequence 4 and the Form 1 relate. In respect of the offending against LJ the offender was 31 or 32 years of age. The offender is the stepbrother of the victim TW and is the stepfather of the victim LJ.
In 2010 TW was living with her family in suburban Wagga Wagga. The offender would regularly visit the household. TW was in kindergarten at the time and walked to and from school accompanied by family members. The offender would also occasionally accompany the victim to and from school.
Between 27 January 2010 and 5 August 2010 when TW was 5 years of age, the offender was 18. The offender walked the victim and her brother home from school. The parents of the victim were not at home when the victim, her brother and the offender arrived home.
The victim went to her bedroom and the offender followed. He shut the door and told the victim to lie on the bed, which she did. The offender asked the victim questions about her day at school and as he was doing so started to rub her genital area on the outside of her clothing. He then pulled down the victim's shorts and underwear. When she asked what he was doing he told her not to worry about it. The offender sat on the victim and rubbed her genital area on the bare skin using an "up and down" motion. This is the conduct to which sequence 2 relates.
An issue arose at the sentence hearing as to whether I should find that the offending conduct was opportunistic. Mr Davies, counsel for the accused submitted that it was. Counsel put that the offending was not planned and occurred in circumstances not manufactured by the offender. The submission continued that the offender took advantage of opportunities presented to him, which is the definition of opportunistic offending. The Crown did not suggest that the offending was planned, but given that the onus is on the offender to prove on balance that the offending was opportunistic, the evidence, especially the reports of the psychologists with which I will deal later in these reasons, and the evidence of the offender, also with which I will deal later in these reasons that he was aware of the "urges" to offend that I would not be satisfied on balance that the offending was opportunistic.
Ultimately, I am persuaded by Mr Davies for the offender that the offending was opportunistic. In particular I accept the submission that the offender took advantage of opportunities presented to him. I agree with counsel's submission that this is the definition of opportunistic offending.
The victim was 5, the offender was 18 and in the circumstances the age difference is substantial. The victim was at the middle of the age range contemplated by the section. There is the breach of trust. The conduct relates to skin-on-skin contact with the offender rubbing the child's genital area after the offender lowered the victim's clothing. The offending occurred in the victim's home. I am not informed for how long the offending conduct continued. The matter is within the mid-range of seriousness.
Immediately after the conduct to which sequence 2 relates, sequence 7 occurred. The offender took his penis out of his pants and using one hand rubbed his penis up and down on the outside of the victim's bare genitals for a about 5 minutes. The facts are silent as to whether the offender's penis was flaccid or erect. I cannot find beyond reasonable doubt that it was erect. He was using his other hand to support his weight while leaning over the victim. The offender was asking the victim about school while the offending continued.
Many of the matters that inform the seriousness of sequence 2 are present in respect of sequence 7. However, the conduct is more serious involving as it did the rubbing of the offender's penis on the victim's genitals, skin on skin. This matter is marginally above mid-range.
Paragraph 9 of the facts, which follows immediately after the recitation of the facts relating to sequence 7 recites that "offending of this nature" happened almost weekly. The offender is therefore to be sentenced on the basis that the matters to which sequences 2 and 7 relates was not isolated conduct.
The facts then set out the matters to which the matters on the Form 1 attaching to sequence 4 relate. The conduct to which sequence 4 relates occurred immediately after the matters that are on the Form 1 document. This conduct occurred when the victim was 9 years and 8 months.
TW's family moved to a different house in the Wagga Wagga area. TW and the offender were unpacking boxes and while doing so found a box of child's dress up clothes. The offender suggested that the victim try on some of the clothes. She took her outer clothes off and put on what the facts describe as a "purple princess dress". The offender told TW to lie on the bed and she did so. The offender removed the victim's underwear and pushed both her legs back so that her knees were at her chest and feet in the air. Using a mobile phone he photographed her bare genital area. This is the conduct to which sequence 8, a charge of Produce Child Abuse Material relates. This is very much a less serious example of the offending noting it was one image, no dissemination, no gain to the offender and it was spontaneous offending. However, the image was taken of a real child.
The offender reached up the dress and rubbed the victim's genital area with his hand. This is the conduct to which sequence 3, Aggravated Indecent Assault relates. Although attaching to a Form 1 document this is a relatively serious example of an aggravated indecent assault noting that it was skin on skin contact.
Going to sequence 4, which happened immediately after sequence 3, the offender pulled his erect penis from his pants and stood directly in front of the victim TW. Using his hand he manoeuvred his penis up and down the outside of TW's genitals. He attempted to insert his penis into her vagina, but she immediately called out in pain saying, "stop, its hurting". The offender said, "shut up" but he stopped having penetrated TW's labia majora very briefly and to the slightest extent. He then rubbed his penis on the outside of TW's genitals for about a minute until a car pulled up at the house. The offender said to TW, "go to your room and don't tell anyone about our secret". TW complied and went to her room.
The victim was towards the upper end of the age range at the time of the commission of the offence. The penetration was very brief and to the "slightest extent". The offending was opportunistic, and the offender ceased the conduct when the victim told him to stop. The offender was not in a position of trust. In all of the circumstances the offending is well below the mid-range of seriousness.
The facts then go to what is described as the "Third Incident". In 2020 the offender and his wife NJ were living at an address in Callaghan Street, Ashmont. TW was aged 15 years. On Friday 10 January 2020 NJ decided at the last moment to travel to Wauchope to visit relatives. She asked TW and her brother BW to come to her home to look after the younger children while the offender drove her to the railway station. The offender dropped NJ and other family members at the railway station and returned to the Callaghan Street residence. The offender told TW to sleep in his bed. TW went to the bed and went to sleep.
Later that night TW was woken by the offender pulling her hair and forcing her up into a seated position. The offender was seated next to TW on the bed and he forced her head down towards his groin. The offender pulled down his boxers exposing his penis and said to TW, "suck it". TW refused and the offender kept on saying "please". TW started crying and the offender pushed her head downwards forcing his penis into her mouth. He then moved her head up and down so that his penis was going in and out of her mouth. After a while TW did it herself in order to get it over with, but the offender's hand remained on the back of her head.
TW stopped fellating the offender and used both hands to rub his penis instead the offender forced TW's head back onto his penis until he ejaculated into her mouth. She got up, ran to the bathroom and spat the ejaculate into the bathroom sink. The offender followed her grabbed her by the arm and pushed her back into the bed telling her to go to sleep. TW was crying and curled up in the corner of the room until she eventually ran out and slept on the back veranda for the rest of the night.
The next morning TW came inside early so that no one would know that she had slept outside. She made breakfast for the younger children. Later that morning the offender approached her and said, "Sorry for last night, can we forget about it. Please don't tell anyone". He offered her $20 which she refused. She made the children lunch and walked home.
TW did not disclose the offending until she heard the offender had been arrested for the offending against LJ.
The victim was very close to the upper end of the age range contemplated by the section, although the age range is limited to 2 years. The offending involved fellatio with the offender ejaculating into TW's mouth, while he had his hand on her head. There was some physical handling of the victim during the offending. To the extent that the agreed facts suggest that the victim did not consent or that there was force used I must ignore those aspects - see Di Simoni v The Queen. The matter is within upper end of the mid-range of seriousness.

Offending against LJ - H9420 2078

The offender was in a relationship with LJ's mother, NJ, and at the time of the offending that relationship had been ongoing for about 10 years. The offender and NJ had two children together and NJ had two children from a previous relationship, one of those being LJ. At the time of the offending NJ and the four children were living at the Ashmont address.
Going to sequence 3, which is an offence contrary to s 66A of the Crimes Act and sequence 4, which is a Form 1 matter attaching to sequence 3, on one occasion between 20 December 2021 and 27 January 2022 and LJ was 8 years 9 months old, the offender and four children were at home. The children were in the lounge room watching a movie and the offender was having a shower. After he got out of the shower, he called out to LJ to come and "help him". The facts recite "the offender took LJ into his bedroom and made her suck his penis [sequence 3]" No further details of the offending are given within the facts. After this the offender took a purple-coloured metal vibrator turned it on and put it up LJ's shorts and held it against her genitals under her underpants. This is the matter on the form one document. This hurt LJ and she told the offender to stop, which he apparently did.
The victim was towards the upper end of the age range contemplated by the section. The offender was in a position of trust and the offending occurred in the victim's home. The offending was opportunistic. The facts are silent as to whether there was ejaculation and accordingly, I cannot be satisfied beyond reasonable doubt there was. In all of the circumstances, particularly given the lack of detail of the offending the matter is slightly below mid-range.
I observe that the matter on the Form 1 is no minor example of an offence of that type, noting the various factors including the age of the victim, the position of trust, it occurred in the victim's home and the nature of the offending involving as it did applying an implement (the vibrator) to the genitals of the victim. I would assess the matter as being marginally below the mid-range.
The conduct to which sequence 5 relates occurred when LJ was about nine years eight months of age. The offender owned a blue Ford Territory motor vehicle. On one occasion the offender was driving to the shops with LJ in the front passenger seat. Her little sister MW, aged five years, was in the rear passenger seat behind the driver. Whilst driving, the offender took LJ's seatbelt off and unzipped his pants. The facts recite "LJ lent over and the offender made her suck his penis. She stopped once they arrived at the shops." The facts also indicate this happened more than once. Accordingly, the offending was not isolated.
Again, the victim was very close in age to the upper end of the age range contemplated by the section. The offending was opportunistic but it was not isolated. The facts are silent as to whether there was ejaculation and accordingly, I cannot be satisfied beyond reasonable doubt there was. It is not suggested in the facts that the younger child in the rear seat saw what occurred. Initially in written submissions the Crown put (paragraph 35) MFI 2 on sentence that the offending occurred in the presence of a child. That submission was not pressed at the sentence hearing. The offending is slightly below the mid-range of seriousness.
Facts then go to sequence 1, which is a further charge contrary to s 66A of the Crimes Act. On Wednesday, 25 January 2023 when LJ was aged nine years and nine months the offender arrived home shortly after 5 pm. NJ left the house to visit a friend, leaving the offender at home with the four children. LJ was in her bedroom whilst the other children were in the lounge room watching a movie. The offender asked her to come into his room and "do that thing". LJ refused and the offender replied, "Now, or you won't be my favourite child".
LJ walked into the offender's bedroom and the offender warned her not to tell her mother. LJ sat on the side of the bed and the offender stood in front of her with his pants down. He placed his hand on her head as she fellated him. The offending ceased when the offender heard NJ returning to the house.
The victim was almost at the upper end of the age range contemplated by the section. The offender was in a position of trust, the offending occurred in the victim's home and there was some physical handling of the victim. The facts are silent as to whether there was ejaculation and accordingly, I cannot be satisfied beyond reasonable doubt that there was. This matter, given the physical handing and the persistence of the offender is at the low end of the mid-range.
Later in the evening of 25 January 2023 LJ spoke to her mother and disclosed the offending. NJ telephoned the offender and confronted him with the disclosure. He admitted the offending. When the offender returned home NJ covertly recorded another conversation between her and the offender during which he admitted the offending. NJ, using speaker phone, called the offender's mother and the offender admitted the offending to his mother.
NJ contacted police by a triple 0 call. They attended at about 10.45pm, arrested the offender and took him to the police station where he was charged with some of the offending and refused bail.
On 28 March 2023 detectives lawfully recorded the audio of a video call between NJ and the offender during which he admitted the offending against TW and LJ. As a result of the investigation into the disclosures made by LJ police identified the offending against TW. On 31 May 2023 after LJ made further disclosures; the offender was charged with further offences against LJ and the offending against TW.
The offender wrote a number of letters from gaol to LJ and NJ acknowledging that what he did was wrong, the pain that he caused and apologising.

Criminal History

The offender was born on 22 November 1991 and accordingly is 32 years of age. He has a limited criminal history and all of the entries relate to traffic matters. The offender is entitled to some degree of leniency because of his limited criminal antecedents. There is also the positive aspects of the offender's character given the testimonial references from Troy and Lisa Gaffey. However, it is now uncontroversial that prior good character does not have the same effect so far as child sexual assault offending is concerned. In oral submission Mr Davies referred the court to the judgment of Kirby J in Ryan v The Queen (2001) 206 CLR 267 at [118]: Courts must uphold the law which treats sexual offences against children and young persons as extremely serious crimes, particularly where (as is often the case) such offences involve breaches of trust and responsibility on the part of those who had such young persons in their care. However, there are three considerations that may be relevant to sentencing such offenders: 1) the need to avoid the actuality or appearance of punishing them because they are paedophiles, as distinct from punishing them for their offences; 2) the need to keep in mind, in a general way, the fact that the publicity and special opprobrium common to such convictions may add significantly to the actual punishment suffered by the prisoner in respects that should be given weight in fixing the judicial punishment that is required in the case; and 3) the need to consider the common elements of the offences, if any, that are proved and whether these help to explain (although not to justify) the conduct of the prisoner in the multiple instances proved.
I note a little earlier in the judgment Kirby J said at [110]: "…To ignore totally evidence relevant to the latter because of a general assessment that the appellant was not, globally speaking, a good man or had committed serious crimes, involves a departure from basic sentencing principle. Even in the case of offences against vulnerable children and young persons over an extended period, as here, a proper evaluation of all matters relevant to the sentencing function required that some weight be given to the evidence of character that stood to the appellant's credit. By dismissing that evidence out of hand, and refusing to give it any weight at all, the sentencing judge erred".
McHugh J who was part of the majority in allowing the appeal in Ryan said at [35]-[37]: [35]-[37] said: Given these circumstances, Gleeson CJ was correct when he said that the appellant was not entitled to significant leniency because of his otherwise good character. However, Nield DCJ gave the appellant no leniency whatsoever for his otherwise good character. He was entitled to some leniency for his otherwise good character. That being so, the Court of Criminal Appeal should have allowed the appeal and re-sentenced the appellant. In re-sentencing the appellant, some weight should be given to the appellant's otherwise good character. In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Second, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case. In this case, once the offences before Nield DCJ and Rummery DCJ are excluded, the appellant was of otherwise good character. He was entitled to some leniency because of that good character.

Victim Impact Statement

The Crown tendered a victim impact statement prepared by TW.
That statement, as victim impact statements often do, speaks eloquently of the short and long term harm done by the type of offending in which the offender engaged. TW feels shame and guilt. While those feelings are understandable, and commonly held by victims it is the offender who should have feelings of shame and guilt, not the victim.
I have read and carefully considered that victim impact statement. However without deprecating the undoubted effects on the victim I cannot use that statement in the absence of other material such as medical or other reports to ground any finding that any factor of aggravation is established. However, the effect of the offending on the victim is taken into account by proper application of s 3A(g) of the Crimes (Sentencing Procedure) Act 1999.

Subjective Case

Exhibit 2 on sentence is a letter of apology from the offender. The offender also gave evidence. In that letter the offender apologises to everyone who has been affected by his actions. The letter continues that since being in custody he has had a lot of time to reflect on how damaging his actions were to the victims. He accepts that many people in gaol suffered abuse as children. He says that he is truly and deeply sorry for what he has done.
In evidence the offender said that he told Mr Patrick Sheehan and Dr Sarah Griffiths the truth. He then read exhibit 2. After the meeting with Mr Sheehan the offender accepts that in the community he had urges that he did not know how to control. He knew those urges were wrong. When asked why did he continue, he said that he "gave in to selfish ambitions". The evidence continued that when he is ultimately released he will do anything to control the urges, including seeing a psychiatrist. He said he wants to become a civilised member of the community. He accepts that this may involve a cost, which he is prepared to meet.
The offender's evidence continued that in the community he did not know where to seek the help he needed. He did not think to talk to anyone. He said he was disgusted with himself and that he is terribly sorry for the harm that he's done.
Further, the offender said he has three children, a daughter aged 13, a son aged 9 and another daughter aged 6. Those children live with their respective mothers. He has not been able to see them since he has been in custody, but it seems there has been some contact by telephone. He would like to develop a relationship with those children.
This is the offender's first time in custody and he has found it difficult and confronting. He was seriously assaulted in Junee Correctional Centre on 7 February 2023 a few weeks after being taken into custody. The assault occurred the first day after he came out of isolation. A number of other inmates were responsible for the assault. Understandably the offender is fearful of further assaults given the nature of his offending. He gave an account of having a fall to the treating doctors as he was threatened with further violence if he disclosed the assault.
Given the assault the offender is entitled to some minor consideration for extra-curial punishment. The issue of the assault is also relevant to a finding, which I am prepared to make that because of the nature of his offending the offender will find custody more onerous. This latter point goes to a finding of special circumstances.
The offender had family members in court including his mother and grandmother. He is apparently able to live with his father upon his ultimate release. He has ambitions of working in the engineering or manufacturing field upon release. He has worked in the past with Byrnes Trailers in Wagga Wagga.
Mr Davies, counsel for the offender took him specifically to the offending to which sequence 1 to H94202078 relates, i.e the offending of 23 January 2023. He said it was a cold night and as the couch was leather he invited the victim to sleep in his bed. Initially he did not intend to offend but after some time he began to struggle with thoughts. He said he was disgusted with himself for the offending.
When asked by counsel how could he assure the court that he will not reoffend he said that he will have a support network, he has a better understanding of his offending and he will seek out professionals such as a counsellor or psychologist to assist him.
The offender was thoroughly cross-examined by the Crown Prosecutor. The offender accepted that he had urges to sexually offend against young girls, including girls under 10. He was aware of the urges since puberty. He accepted that he had not done anything about them, but essentially repeated what he said in evidence in chief that he did not know how to go about seeking help. So far as the specific matter to which the offender was taken by Mr Davies, I understood the offender to accept in cross examination that there was a real possibility of sexual activity with the victim once he invited her to sleep in his bed.
As I observed at the sentence hearing the offender is entitled to a finding that he is remorseful. Further, given the manner of expression of that remorse noting in particular the evidence of the offender that expression of remorse must be given full weight. I did not understand the Crown to oppose such a finding.
The offender relies on two reports, one by Mr Patrick Sheehan psychologist of 2 August 2024 and a further report from Dr Sarah Griffith dated 18 September 2024.
Mr Sheehan sets out (paragraph 4) that the offender seemed genuine and freely disclosed unflattering information about himself. Further, the offender frequently expressed shame and remorse and was tearful at times. On this aspect later in the report at paragraph 23 Mr Sheehan sets out that the offender struck a contrite tone and did not attempt to diminish the seriousness or harmfullness of his offending. The offender said to Mr Sheehan about the victims, "I put them in a bad situation. I was supposed to help them not put them in harm's way. I've hurt them mentally, physically, emotionally. Later on they might be scared to have friendships or relationships. I think about this every day, I think what I have done".
Clearly, the offender is entitled to a finding on balance that he is remorseful. Indeed, given the contents of both reports I am of the opinion that the expression of remorse, particularly noting the nature of the offending and the pleas of guilty, should be given full weight.
The offender reported a "strained relationship with his father throughout his development". His father was heavy-handed with corporal discipline and was a cannabis smoker and unreliably employed. In the absence of any further detail I am not prepared to make a finding that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened in this case.
Further, the offender reported that his mother re-partnered while he was still a young boy and the offender spoke favourably of his stepfather who he described as always a good man. There were no issues of domestic violence, substance abuse, mental illness or crime. The offender denied any childhood sexual abuse or other developmental trauma. The offender has lived independently since leaving home to work in a travelling carnival and has an unbroken relationship with his mother and stepfather. The relationship with his father has been tepid since the offending was disclosed. His mother visits him in custody.
It seems the offender had difficulty at school. While the offender denied any particular learning difficulties, he had problems with anger both in primary and secondary school. He became "disengaged" in years eight and nine with increasing rates of non-attendance. He began smoking cannabis. He completed year nine but never returned to school after that. However, he apparently has no issues with literacy or numeracy.
The offender has had reasonably consistent employment history and has worked most of his adult life. He has worked in a travelling carnival, cleaning, cooking and construction. He tended to gravitate towards non-demanding and non-challenging roles he knew he could do without difficulty. He has been unable to obtain employment while in custody. He has however undertaken some adult education with computers in custody and hopes to complete business studies with the intention of starting an outdoor cleaning company on release to the community.
Mr Sheehan sets out (paragraph 9) that the offender reported no significant social adjustment problems during primary school. He settled towards cannabis smoking peers who seemed more approachable and made less demand on him socially. He is able to establish friendships but rarely maintains them.
The report sets out that the offender reported a history of two primary intimate partner relationships in his lifetime, the first occurring over a 2 to 3 year period. His former partner refused to facilitate further contact with the daughter who was born in that relationship. The most recent relationship lasted between 2015 and 2023, seeing the birth of two further children now aged six and nine years. Although the relationship ended abruptly in 2023 when the offences were disclosed, he has remained on good terms with his former partner speaking to her regularly.
The offender denied any history of sexual abuse. He became sexually active when he was 15. He became a regular user of online pornography from the age of 15 years. He denied ever viewing child abuse material or having any specific sexual interest in children. He acknowledged having seen a lot of quasi-incestuous pornography themes in online pornography but noted his offending commenced prior to this phenomenon. He described his offending as opportunistic in nature but struggled to explain how it was he came to sexually abuse two young girls. He reported a specific "fetish" for oral sex which became a preoccupation when he was affected by cannabis.
On the issue of cannabis, the offender reported having smoked cannabis recreationally from the age of 13 years and linking cannabis use to heightened sexual arousal. He used MDMA regularly whilst working in a travelling carnival. It would seem that alcohol is not an issue for the offender.
Mr Sheehan notes that the offender was bashed while in custody, apparently because of the nature of his offending. Justice Health records were provided; it seems that that occurred on 7 February 2023. Injuries included lacerations and a fracture of the left fifth rib. I also understand records to indicate the offender sustained a pneumothorax. It follows that the assault on the offender was serious.
During the offender's first few months in custody, he felt overwhelmed by feelings of guilt, shame and regret, quietly entertaining self-harm ideation. However he has since stabilised in custody and has reconciled his suffering as a consequence for his crimes. He remains fearful in custody which, given the serious assault, is quite understandable. Mr Sheehan does not regard the offender has been clinically depressed or suffering a mood disorder.
At paragraph 16 of the report Mr Sheehan says, "although he cannot offer any specific information regarding his arousal to these children who are both prepubescent at the onset of offending, the criteria for paedophilia disorder (non-exclusive interest in females) is met". There is no remission rule for this disorder (meaning that diagnoses of this type have a permanent effect).
Mr Sheehan diagnoses the offender as meeting the criteria for cannabis use disorder, mild in sustained remission in a controlled environment. Further he opines that whilst there are some indicators of personality vulnerability with themes of avoidant personality traits, there is no compelling evidence for a full diagnosis of personality disorder. The offender does not meet the criteria for antisocial personality disorder, the absence of which is a favourable prognostic indicator.
While the offender accepts full responsibility for his offending and is genuine in his remorse in the opinion of Mr Sheehan the offender shows limited insight into the thinking and emotion underpinning his behaviour including the mechanisms of moral disengagement that allowed him to exploit children to whom he was emotionally attached. Mr Sheehan further opines the offender will need to work on increasing his insight in order to better understand the causes and maintaining factors of his offending. The offender is assessed as being in the "average" range of the risk of reoffending. In these circumstances I am unable to make a finding on balance that the offender is unlikely to reoffend.
Mr Sheehan also notes that the class of offending is held in particular contempt in the prison culture. Given the history of the assault the offender expressed fearfulness that the nature of his offending will become known with a background of watchful apprehension in his interactions with other inmates. This will likely remain a genuine concern for the offender even in protective custody. Mr Sheehan says (paragraph 28), "this is one of the reasons as to why a jail sentence is more onerous for men convicted of child sex offences in his experience working in the correctional system."
Dr Griffith conducted a neuropsychological assessment. She had the benefit of the earlier report by Mr Sheehan. At paragraph 11 of her report she sets out that the offender told her that since he had spoken to Mr Sheehan he asked himself what drove him to offend and that all he can do is put it down to an urge which was hard to talk about and hard to describe.
The offender expressed his remorse to Dr Griffith. However at paragraph 16 of her report she sets out that "when reflecting on his offending behaviour, while he demonstrated remorse and was tearful at times, he demonstrated minimal insight into the underlying cause of his offending behaviours. Overall, there was no overt evidence of cognitive impairment."
Dr Griffith administered a series of tests in the course of her assessment. The offender performed within normal limits on tests of cognitive effort. His basic auditory attention and working memory were in the low average range. The offender experiences subtle cognitive slowing when faced with increased cognitive load. Semantic retrieval (i.e. retrieving words that belong to a particular category) was in the average range. Verbal intellectual skills were in the low average range. Verbal learning and memory was within age expectations. Verbal abstract reasoning was within age expectations (average) and he performed in the average range on a test of visual abstract reasoning. Dr Griffith observed (paragraph 22) that the offender's ability to perform in the average range on a more complex task indicates inhibition is generally intact that he may experience variability when feeling overwhelmed.
Further, on switching tasks the offender's performance was similarly variable. His scores based on time were significantly below expectations. Accuracy on a verbal task was within the borderline range. Ultimately Dr Griffith concluded (paragraph 24) there is no indication of gross cognitive impairment. She went on to opine (paragraph 27) there is no strong current evidence to suggest that the offender's cognitive profile directly contributed to his offending behaviour.
Dr Griffith went on to express that, with regards to cannabis use and its relationship to the offending behaviour, while the offender tended to be affected by cannabis when he offended due to his mild chronic use of cannabis, this was not the case for all occasions. This inconsistency indicates that while his substance use may have a broad array of cognitive and behavioural effects, it is not a sufficient explanation for his offending behaviour in this case. As I read the report Dr Griffith does not take issue with the diagnosis of Mr Sheehan that the offender suffers from paedophilic disorder.
Further (paragraph 28) Dr Griffith says, "However despite aging from 18 to 28 years, [HW] continued to engage in offending behaviours until his arrest. His consistent offending behaviour, despite increasing age, suggests a lack of evolving insight or the influence of other persistent cryogenic factors, such as personality factors, contributing to these offences."
Dr Griffith recommends that the offender participates in a sex offender treatment program either within the custodial system or through community services. She opines the offender would benefit from having information broken down into simpler more digestible parts and explained in clear and straightforward terms.
Clearly enough, there is a real need for a period of intensive and extensive supervision of the offender upon his eventual release. This is to ensure that he receives appropriate treatment and counselling, in particular to assist him gaining insight into the nature and causes of his offending. Mr Sheehan opines that it is perhaps unlikely the offender will be offered sex offender treatment programs in custody as the policy of Corrective Services is to only offer such programs to medium high risk offenders. I observe it will benefit the offender and the community if he were to participate in such a program.
I observe however, there is nothing in the reports that draws a causal connection between any mental condition or intellectual disability and the offending. I do not consider the principles enunciated by the plurality in the High Court in Muldrock v The Queen [2011] HCA 39 (particularly at [54]) or those enunciated by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] to be enlivened. In fairness I did not understand Mr Davies on behalf of the offender to advance such a submission.
As set out earlier in these reasons, noting that the offender was violently assaulted in custody shortly after he entered custody and given the contents of Mr Sheehan's report, I accept that custody will be more onerous for the offender. This goes to a finding of special circumstances.
On the issue of special circumstances, given the need for the intensive and extensive supervision, taken with the age of the offender and noting it is his first time in custody, I accept that there should be a finding of special circumstances. It occurs to me that I should highly recommend that he participates in a sex offender's programme while the offender is on parole.
Given the content of the reports of Mr Sheehan and Dr Griffith I am not able to find that the offender is unlikely to re-offend. He is assessed in the average range to re-offend. The offender has solid family support. However, again, given the diagnosis arrived at by Mr Sheehan and the contents of the two reports taken as a whole, I am not prepared to find on balance that the offender has good prospects of rehabilitation. It occurs to me that much will depend on whether the offender engages in a sex offender's programme and further, his manner of engagement in such a programme.
Mr Davies, counsel for the offender, submits that in respect of the offending against TW sequences 2 and 7 occurred when the offender was 18 years of age and the remaining sequences occurred when he was 22 years of age. In his comprehensive and helpful submissions Mr Davies refers me to the decision of R v KT [2008] NSWCCA 51 at [23] per McClellan CJ at CL. That part of the judgment is: "The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). "
R v KT specifically dealt with juvenile offenders but nevertheless that part of the decision extracted immediately above is still apposite to the matter under consideration. Other relevant authorities on dealing with young offenders include Hearne which is referred to in the extract in the paragraph immediately above and Locke v R (2010) 207 A Crim R 34 in particular at [41]-[49] per Hulme J. After comprehensively reviewing a number of authorities Hulme J said at [49]: "In my view the youthfulness of the applicant was relevant to the setting of not only the non-parole periods but also the overall terms of the sentences. But whether it warranted less severe sentences (s 6(3) Criminal Appeal Act 1912) is a matter I will consider after dealing with the remaining grounds."
In the matter presently under consideration the youth of the offender is relevant to sequences 2 and 7 and to some extent to sequences 4 and 8 noting that the offender was aged 18 at the time of the offending to which sequences 2 and 7 occurred and 22 when the offending to which sequences 4 and 8 occurred. I observe however, that given the later offending the offender did not appear to acquire the wherewithal to resist what the offender described himself to authors of the two reports as the "urge" to offend. At the age of 30 of thereabouts an offender can no longer be described as a young offender.

Other submissions

In oral submissions Mr Davies accepted that I would be guarded about the prospects of rehabilitation. I had given a preliminary indication that I could not find on balance that the offender was unlikely to reoffend or that there were good prospects of rehabilitation.
However, as to prospects of rehabilitation there are certainly some positive signs. I accept that after the consultations with Mr Sheehan and Dr Griffith the offender has far more insight into the offending and the fact that he will require substantial assistance if he is going to remain offence free. In particular the difficulty with a making a positive finding for rehabilitation is the diagnosis by Mr Sheehan at paragraph 16 of the report that the offender meets the criteria for paedophilic disorder and there is no remission rule, meaning that the diagnosis has a permanent effect.
Mr Davies then addressed on the use of the limited criminal history of the offender. I have dealt with that issue earlier in these remarks when dealing with the criminal history. Submissions were then put as to whether the offending was opportunistic. Again, that has been dealt with earlier in these remarks, and I am satisfied on balance that the offending can properly be characterised as opportunistic.
Submissions were then advanced on behalf of the offender that he gave strident evidence, which was uncontested that he wants to get help, he knows now that he has the urges and he knows that help is available. It was put that he will not be fighting the demons by himself. It was put, and I accept, that there are some very positive signs as to the offender having better insight and realising the need for continued assistance.
The Crown addressed on the issue of the criminal history. When analysed I did not understand that there was any real dispute between the parties as to how I should use the limited criminal history.
Further the Crown addressed as to whether the offending could be properly characterised as opportunistic. I have already dealt with that.
The Crown did not press the written submission (at paragraph 35, MFI 2 on sentence) that sequence 5 to H94202078 was committed in the presence of a child. That concession by the Crown was appropriate. The Crown did not cavil with youth being a factor in respect of the earlier offending but submitted that the offending was not a symptom of youthful immaturity. I have dealt with the issue of youth earlier in these reasons.

General remarks

In passing sentence I will need to give proper effect and regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the offending, including the nature and multiplicity of offending there must be a sentence of imprisonment in this matter. Mr Davies, counsel for the offender did not submit otherwise.
Clearly this is a matter for an aggregate sentence. If separate sentences were imposed there would need to be some degree of partial accumulation of sentence in respect of the offending to note the different offending. There would also need to be some partial accumulation to recognise the different victims. Given the nature of the offending to which the Forms 1 relate there must be some impact on the sentence to be ultimately imposed. Of course, proper regard will need to be given to the principle of totality.
It will be necessary to set out the sentences that would have been imposed had separate sentences been imposed. I will set those out in tabular form hereunder.

H94127658 - relating to TW Seq Summary of offending Maximum Penalty Indicative sentence 2 27 Jan 2010 - 5 Aug 2010 10 years with a SNPP 8 years NPP 18 months, balance of term (BoT) 9 months making a total sentence of 2 years 3 months indicating a starting point (SP) 3 years Aggravated Indecent Assault s 61M(2) Crimes Act, 1900; rubbing bare genitals with hand; TW 5 years of age, offender 18 27 Jan 2010 - 5 Aug 2010 7 Aggravated Indecent Assault 10 years, SNPP 8 years NPP 2 years, BoT 1 year, total sentence 3 years with a SP 4 years s 61M(2) Crimes Act. Rubbing penis on bare genitals; TW 5 years of age, offender 18 April 2010 Including the 2 matters i.e. sequences 3 and 8 on the Form 1 4 Sexual Intercourse with Child Under 10. Section 66A Crimes Act. Penetration of the labia majora for a brief period and to the slightest extent. 25 years with a SNPP 15 years NPP 5 years, BoT 2 years 6 months, total sentence 7 years 6 months, indicating SP of 10 years TW 9 years 8 months, offender 22 10 January 2020 11 Sexual Intercourse with a child between 14 and 16 - s 66C(3) Crimes Act. Fellatio ejaculating in victim's mouth 10 years with no SNPP Total sentence 3 years, indicating SP of 4 years. Victim 15 years 5 months offender 28

H94202078 - relating to LJ 20 Dec 2021 - 27 Jan 2022 3 Sexual Intercourse with child under 10 - s 66A Crimes Act Life imprisonment with SNPP 15 years Including the matter on the Form 1, i.e. sequence 4 Fellatio after shower and before use of vibrator NPP 5 years 6 months, BoT 2 years 9 months, total sentence 8 years 3 months, indicating SP 11 years Victim 8 years 9 months, offender 30 years of age December 2022 5 Sexual Intercourse with Child Under 10 - s 66A Crimes Act As above NPP 4 years BoT 2 years, total sentence 6 years, indicating SP of 8 years Fellatio in the vehicle Victim 9 years 8 months offender 31 25 January 2023 Sexual Intercourse with Child Under 10 1 Fellatio in bedroom while mother of victim away from home As above As above Victim 9 years 9 months Offender 31

Orders

The offender is sentenced to an aggregate sentence of 14 years with a non-parole period of 9 years 4 months.
The non-parole period will commence on 25 January 2023 and will expire on 24 May 2032. The balance of term on parole of 5 years 8 months will commence on 25 May 2032 and expire on 24 January 2037.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
I recommend in the strongest of terms that parole be conditioned that he be supervised by the Department of Community Corrections and obey all reasonable directions of that service in particular as to his participation in any sex offender's programme that might be recommended by that Department.
The sentence indicates a finding of special circumstances the reasons for which are set out within these reasons but include the need for an extended period of supervision.
The non-parole period is 66.6% (two thirds) of the total sentence.

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: 04 December 2024

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