R v Iloski [2023] NSWDC 596 | Case summary

OBJECTIVE SERIOUSNESS

Count 1: commit act of indecency with a child under 16 under authority: DL was in the middle third of the age range for this offence, being eight, nine or ten, which is an age well under the maximum age for a child for that offence. The offending was the offender exposing his penis to DL while they were in the swimming pool at his home, while DL swam between his legs. There is a single charge, although the evidence was that it occurred with some frequency, that is, there was repeated swimming between the legs, and repeated occasions. As she did so, he exposed his penis to her, and she observed it. As I have previously referred to there was a 33-year age gap between them, and it cannot be said to be an isolated incident.
The parties are ad idem that the offence falls in the mid-range of objective seriousness. It is not necessary since Muldrock for the Court to assess matters against a range of seriousness, including a mid-range. However, in the circumstances where both parties have adopted the same language and assessment, I will adopt that language.
As to Count 2, indecent assault of a child under 10, this occurred within some weeks after Count 1 and again was committed in the offender's swimming pool while DL swam between the offender's legs. The offender again exposed his penis, but guided DL into contact with his penis so that it touched her on the shoulder. Again, there were multiple incidences of the same conduct as she swam between his legs on that day and on others. At the time, DL was at the upper range of age for offences of this nature, that is, eight or nine. Again, the parties are in agreement that it could be appropriately assessed as falling in the mid-range of objective seriousness.
Count 3 is again a count of indecent assault of a child under 10. Count 3 occurred on the same occasion as Count 2. After DL got out of the pool the offender gave her chocolate and he placed her onto his lap while they were both still wearing swimming costumes. The offender then rubbed his exposed penis onto DL's thigh. Having regard to her age and the age difference between them and the nature of the act, the parties are again in agreement that it falls into the mid-range of objective seriousness.
Count 4, indecent assault of a child under 16. The offender placed his hand inside DL's underpants, touching her genitals and moved his hand around whilst they were both seated on a couch in the offender's lounge room. The assault lasted for a number of minutes. It involved skin on skin contact with the child's genitalia and as such is a serious indecent assault. DL was then in the middle of the age-range for offences of this nature, being eight, nine or ten years old. Having regard to the nature of the act, DL's age, the age difference between them and the duration of the assault, the offence sits above the mid-range of objective seriousness according to the submissions of both parties.
Count 5, sexual intercourse with a child between 10 and 14 years of age under authority. This offence also occurred when the offender and DL were sitting on a couch in the lounge room of the offender's home, but on a different occasion to Count 4. On this occasion the offender again placed his hand into DL's underpants and rubbed her genital area. The offender then digitally penetrated DL. DL was at the lower end of the age range for this offence, being eight, nine or ten. Having regard to the nature of the act, DL's age and the age difference between them, it is agreed by the parties that the offending falls within the mid-range of objective seriousness. The legislation does not make any distinction between the different possible acts of sexual intercourse, however I accept that digital penetration of the genitalia is a less serious form than penile penetration by way of fellatio or genital or anal penetration because it encompasses significantly less risk of adverse consequences, such as disease, pregnancy or injury, although it remains serious.
Count 6, indecent assault of a child under 16 years of age. On another occasion, separate from Counts 4 and 5, the offender and DL were sitting on a couch in the offender's lounge room. The offender again placed his hand inside DL's underpants and touched her genitals, moving his hand around. The offence continued until DL's mother entered the room. DL was in the middle of the age range for this offence. Having regard to the victim's age, the age difference between them, the nature of the act being skin on skin contact with the genitalia, the offence sits above the mid-range of objective seriousness, and both parties agree.
Count 7, indecent assault of a child under 16 years of age. The offender and DL were sitting on a couch in the lounge room. DL's sister KL was also in the room watching television, although there was no evidence that KL knew what was happening to her sister. The offender placed his hand inside DL's underpants and touched her genital area and moved his hand around on her genitals. DL was in the middle of the age bracket for this offence. Having regard to the nature of the act, DL's age and the age difference between DL and the offender, the offence also falls above the mid-range of objective seriousness.
Count 8, indecent assault of a child under 16. On another occasion when the offender and DL were sitting on the couch in the offender's lounge room, the offender placed his hand inside DL's underpants, touched her genital area and moved his hand around. While this was happening, DL's mother was in the room. DL was in the middle of the age bracket for this offence. Having regard to the nature of the act performed, DL's age and the age difference between them, the offence is agreed to fall above the mid-range of objective seriousness.
Count 9, indecent assault of a child under 16, relating to KL. The age difference between the offender and KL was 30 years and eight months. When KL was 13 years of age, she stayed overnight with a friend at the offender's house prior to going to a church camp. KL and her friend were sleeping in the same room. During the night, the offender came into KL's bedroom, removed the covers from on top of her and placed his hand between her thighs and moved his hand up towards her genital area. KL woke up and challenged the offender, who then left the room. The offence involved skin on skin contact but did not involve the touching of KL's genitalia, although I accept that that would have been likely to have occurred if she had not woken up. The offender did not stop the assault of his own volition, but because she had woken up and challenged him. KL was in the upper end of the age range for the offence but not at the top of the range: she had been 13 at the time. At the time of the offence, KL's mother was not in the house and KL was effectively under the offender's care and control as he was the sole adult caring for her. The victim was therefore under the offender's authority, a factor which elevates the seriousness of the offence. Having regard to the nature of the assault, KL's age, the age difference between the offender and victim, the fact that KL was under the offender's authority, the offence falls at the mid-range of objective seriousness, as is accepted on behalf of the offender.
There is no Victim Impact Statement before the Court from KL. There is however a Victim Impact Statement from DL. While it is lengthy and covers such things as; moving to Sydney, life at Dragan's, ten-year-old talk, KL telling mum, JIRT interviews, school counselling, medical examination as a child, impact on school life, speech pathology, "burying my feelings for years:, adult stuttering, anxiety, work, husband, making a statement as an adult, Dragan phone call, telling my husband, how I feel today and conclusion." The contents are an eloquent example of the significant difficulties that arise from sexual offending against children, particularly as they grow older and then realise what has happened to them in the past should never have happened and suffer the consequential effects of a reaction. I will quote at least two parts of the Victim Impact Statement as in my view they are significant.
First of all, in relation to her attitude to the offender when she first got to know him and her attitude or reaction to finding out that what he had been doing to her in the past was wrong, she said the following: "Life at Dragan's. The offender made me feel loved, unlike my own father. I looked up to him as a father and caretaker. He would spend a lot of time with us kids, would play with us and would always have my favourite chocolates at his house. Life was good. He was so good to my mum, which as unfamiliar to me and I was so happy for her. I had never seen her so happy before. It seemed like everything was perfect. Ten-year-old talk. It wasn't until I had the ten-year-old talk with my mother a few months after turning ten did I then realise the interactions that I was having with the offender were wrong. I remember sitting with my mother as she was explaining what is right and what is wrong and feeling completely overwhelmed. I felt sick to my stomach, and I had no idea how I was going to tell my mother what was going on at his house. I felt an unprecedented amount of shame. I immediately felt that I was to blame. I questioned myself as to how I never brought this up to anyone or how it never came up in a conversation with my mum, my siblings or a friend."
There was a very unfortunate incident when, having informed her mother of what had happened, that her mother, without forewarning her, drove her to a local park where the offender then joined them, and DL was expected to state aloud in front of her mother and him what he had done to her. She said: "This is probably the most traumatic thing I have ever had to do. I could barely say what he did just to my mum, but now here I am sitting in front of my abuser with no forewarning from my mother as to where we were going, having to say what he did. I had no idea what I was expecting him to say in response, but when he denied everything that happened my heart sank, and I felt as though my mum hated me because she thought I had lied to her."
The offender cannot be blamed for the entirely inappropriate approach taken by the complainant's mother. PL made her daughter feel that she was disbelieved and lying and forced her to participate in an extremely stressful event. It was after that occasion, at a later time when KL informed her mother that something had also happened to her. As a consequence of having spoken to some friends about it, it was then that their mother took it seriously. DL said: "…that I was happy that mum was now listening, but I was at the same time completely heartbroken knowing that she believed my sister but didn't believe me."
I will not go through the detail of how difficult it was to engage in such things as the JIRT interview, school counselling, being medically examined as a child or to the obvious effects that it had on her school life and the need for her to engage later in speech pathology, and to find a way over the years to bury her feelings, and the significant effect that her realisation of the inappropriateness of the offending against her has had a substantial effect on her social life and of course the need for the incidents to be revisited as a result of finally persuading the police to take action in 2020. There had been an earlier report in, I may have the wrong year, 2007, when the sisters were spoken to by police, but there was a determination by the family, not by DL, not to pursue it. After their mother died, they pursued it, which resulted in the offender eventually being charged and brought to trial.
As part of an endeavour to obtain evidence, there was a - what is known by lawyers as a "pretext telephone call" by DL to the offender. In her Victim Impact Statement, she states: "Police advised me that calling the offender would help our evidence for the case. I felt very nervous about calling him but knew it would help the case. When I got home after the phone call, I felt immense guilt afterwards. I didn't sleep for a week because I felt very deceitful to get someone to admit what they have done, knowing it was being recorded and would be used against them."
As to the overall effect on her, she states under the heading 'Conclusion': "Since the day my mother had the ten-year-old talk with me and I grasped the magnitude of what he had been doing to me, I have never been the same person. I was no longer the confident and outgoing happy girl who was able to speak without fear of stuttering. I was broken. I will never be able to forget the horrible things he did to me as a child, and it will affect my life until the end of my life. Whether that is the constant reminder of when I see young children around ten years old, how someone could do such a thing to an innocent child or the nightmares I still have today, these offences have caused me to have feelings of shame, anxiety, worthlessness and feeling dirty. I have lost my confidence. I lack trust in others. I am held back significantly in my life, whether it be meeting new people, attending events or exploring, studying and career options. The offender took away my purity and my innocence. I struggle to sympathise with people because no sympathy has ever been shown to me. I had to keep this secret from my family members (especially my father). So, it felt like I was living a lie. I live with the trauma of police questioning and medical examinations that no child should have to go through. I will have to live with all that you have done to me for the rest of my life. I will have to explain this to my kids one day too. Now that I'm a mother myself I cannot trust anyone to watch my son. I will never put him in day care or have a babysitter look after him. This is a huge restriction on me and my life, however a small price to pay to protect him from people like you. I have only used the words "what he did to me" as I don't want to give any more life to what took place. The offender built a relationship with me, got me (and my mother) to trust him and then used me to manipulate and abuse me for his own pleasure. He is a disgusting human being. The offender is a child groomer, molester and a paedophile. He should never be around children even in the presence of their parents. I was an innocent vulnerable child who is now left with the scars of what he has done."
I have quoted from the Victim Impact Statement at length because in my view it is a very eloquent statement of the entirely expected results of offending of this nature. It is not an aggravating circumstance, and the effect on the complainant and her suffering does not go beyond what can ordinarily be expected as a result of offending of this nature. But it is clear that the offending has had a very significant impact on her, and I accept that it is likely to be a lifelong problem. Hopefully with counselling she will be able to cope better with it in the future, but even that process will bring much of it back to her.
As to subjective matters, before the Court is a psychological report under the hand of Laura Durkin, dated 7 October 2023. The offender's criminal history which I note as it is convenient, indicates that he is now some 61 years of age, and he has never been convicted of any criminal offence. In addition, there is a Sentencing Assessment Report under the hand of James Kyle, Community Corrections officer, dated 30 October 2023. A New South Wales Department of Corrective Services Case Note Report, being a structured case note, pre-sentence consultation by Luke Brabam. Subjective matters are taken from that material.
The offender is now 61 years of age, the offences occurring in his early 40s. I note that since the conclusion of the trial and bail being refused, as required by the legislation, that he was significantly assaulted by his cellmate who was at the time experiencing psychotic symptoms, and according to the offender that he did not receive what he regarded as proper treatment and assistance. I note however in relation to the assault that there is a high expectation that offenders who are convicted of offences in relation to sex offending against children are likely to suffer harsh retribution from other inmates, but that the assault on this occasion was not for that reason, but because the cellmate was then suffering psychotic symptoms for whatever reason. Nonetheless I accept that Mr Iloski was seriously assaulted.
It is also common that offenders who have been convicted in relation to offences such as this will be placed into protective custody, either as a result of their own fears and a request to be so placed, or because Community Corrections see it as the way to avoid the retribution frequently inflicted on offenders of the nature by other offenders who are imprisoned for entirely unrelated offences.
In my view it is likely, although he does not yet appear to have been placed in protective custody, that the offender will eventually either seek to be placed in protective custody or be placed there by Corrective Services as a result of the nature of the offending. Protective custody is a more restrictive form of imprisonment than imprisonment in the general population.
The offender was born in Serbia to Macedonian parents. The family returned to Macedonia when he was four years of age, and when he was eight years of age they immigrated to Australia. He is the second of three children to his parents' union, with an older sister who is aged 63 and a younger brother aged 56. His parents had no other children and remained together until their deaths, his mother dying in 2020 and his father in June 2023. He advised that he was raised in a prosocial and loving family and that his parents worked hard to provide, which frequently resulted in their absence from home, but that they were nonetheless supportive people and encouraged him and offered clear boundaries and positive role modelling. His mother showed him care and affection when she was available, and his father expressed his pride and gratitude to the offender.
The offender advised that he was in the average academic range in primary school and the average academic range at secondary school. But he was not interested in study and so he terminated his education at Year 11 after completing the Year 10 School Certificate. In his late childhood he had obtained a paper run, and when he left school he obtained employment as a car spray painter, although he resigned as his employer was taking financial advantage of him, and thereafter commenced work as an industrial painter. He worked for two different companies in that capacity before commencing work on the railways in his early twenties. In 1990, he secured a role in construction with the railways, and he worked in that capacity for some 33 years before resigning in 2018. He then commenced work at the Shoalhaven Council where he was employed in that capacity until he was arrested on the charges currently before the Court. He has had a continuous work history and clearly contributed through that work to the community.
He devoted a lot of his early income to his parents to help them buy a house. He has been married twice, and he was at the time of his arrest in a current partnership with a third woman. He was first married at the age of 24, but he was not particularly emotionally connected to and engaged with his wife, nor was he apparently sympathetic to the challenges that she experienced during his absence from the home because of his work. She had often been left to be the sole primary carer for their children.
He married a second time and had a physically satisfying relationship, but he terminated the relationship because his partner was said to have given him the "silent treatment" and because she lied to him about financial matters, so he terminated the relationship. There were three children from his first marriage, but no biological children from the second marriage, although his second wife had two sons from a prior relationship, and the offender parented those while he was married to their mother. However, having separated from each of the two wives, he has not maintained contact with any of his three children, biological or otherwise, with the exception of his daughter from the first marriage who he has provided some financial assistance to, but with whom he does not have what would appear to be a strong or ongoing relationship. At the time of his arrest, he was in a current relationship, which is described in the psychological report as being "casual at best."
As to sexual relationships, it is said: "He endorsed only conventional sexual interests and denied any deviant or non-conventional sexual interests, including any sexual attraction to or arousal in response to children or young people. There is thus no evidence of paraphilic disorder."
That may be correct on what the psychologist was told by the offender, but it is entirely inconsistent with the offending over a matter of years in relation to two separate female children.
As to his health, he has had some injuries over the years, notably ankle and knee injuries as well as a slipped disc, and he has some ongoing difficulties, but it would seem not significant in relation to those matters. Fifteen years ago, he was diagnosed with tinnitus which has been unsuccessfully treated and is intermittently present. In 2019, he had a hernia as a result of work for which he received surgery, and the condition was rectified.
As to the prison assault, he received a punch to the side of the head which developed an oedema around the temple. He was assessed for brain trauma but cleared of any concern. According to the psychologist there is no evidence that he was struggling psychologically as a result of the assault. He uses alcohol socially and typically only consumes one standard drink per occasion up to twice a month. He denies having ever used illicit substances and he has never reportedly gambled problematically.
As to the offences, the psychologist reports: "Mr Iloski was found guilty at trial for perpetrating the current offences and he maintains his innocence on all the charges. He indicated he unequivocally denies the charges. Given his position it is not possible to obtain information on Mr Iloski's motivation for offending or his sense of remorse and regret."
In the Sentence Assessment Report under 'Attitudes' is stated: "Mr Iloski denied the police facts in their entirety and disputed all allegations regarding the current matters. He reported having a normal father daughter relationship with his ex-partner's children at the time of their relationship and denied any sexual motivation or intent. Mr Iloski struggled to explain why he is facing such allegations and referred to the facts as false, however suggests that the claims are driven by financial motivation."
I note that children of eight, nine, ten or even 13 have little concept of obtaining financial reward by making entirely false allegations that would cause them to have to give evidence and go through the process of a trial. In my view, Mr Iloski is simply denying that which he knows he did and seeking to find some reason to diminish its validity in his own mind. He was assessed in relation to sex offending as being in the below average risk category, or a low risk of re-offending.
Considering his past history and the fact that this offending occurred within a relationship which had attached to it children, I am of the view that the offender is a low risk of re-offending, providing that he does not enter into any further relationships where there are young children attached.
Under 'Insight into the impact of offending' the report contained: "Mr Iloski struggled to recognise any impact to the victims as a result of the offending, stating he has not done anything wrong."
That is one of the reasons why I referred at length to the Victim Impact Statement to bring home to him the foreseeable consequences of such offending. There is in this matter - it having been a defended trial, forcing each of the complainants to give evidence - no evidence of remorse or contrition at the time of trial or since that time, as is evident from both the psychological report and the Sentence Assessment Report.
I am required to take into account when sentencing the offender s 25AA of the Crimes (Sentencing Procedure) Act, that is, sentencing according to current patterns of sentencing rather than past patterns. In my view, however, while there may have been some change, it is not a particularly significant change since 2003 to date. I note in my view that there has been some increase in sentencing since that time of which I will take account.
As to rehabilitation, the prospects of rehabilitation must be, in my view, guarded. Rehabilitation requires an offender to acknowledge their guilt and accept that what they did was wrong before there can be any hope of any rehabilitation, and this offender continues to be in denial.
Nothing has been put before me as to any difficulties since I refused bail, and the offender has been in custody - as to whether that has been adversely impacted by any COVID restrictions - but I note COVID is still with us and is still likely to cause some restrictions in the future in the community and in custody. I will take that into account.
I intend to proceed by way of an aggregate sentence, and accordingly it is necessary for me to provide an indicative sentence in relation to each offence and an indicative non-parole period where the offence carries a standard non-parole period.
Counts 1 and 5 each involve the applicable concept of being under the authority of the accused, and that is taken into account by the nature of the charge itself. However, the offender had formed a closed relationship with the family and was trusted from an early stage to have access to the children in the absence of their mother. In my view there was a breach of trust in the circumstances which is relevant to each of the charges, and a breach of trust is not quite the same as being under authority, although there is a significant overlap. A breach of trust is referred to as an aggravating circumstance in s 21A(2)(k), and that it is outside the scope of the phrase 'under authority' where that is shown as an element of the offence, referred to in PC v R [2022] NSWCCA 107.
While I have found that the risk of re-offending is low, as posited by both the Sentence Assessment Report officer and the psychologist, in the absence of any evidence of contrition or remorse, the offender maintaining that the offences never occurred, in my view the need for both general and specific deterrence remains an important matter to take into account.
The offender was previously a person of good character, at least up until the commencement of these offences, but his character is significantly affected by the fact that these offences occurred in relation to two separate female children, and over a period of years. There is nothing in the psychologist's report which provides evidence of any psychological or mental health condition which is causative of the offending, so there is no basis on which to reduce the offender's moral culpability. Ms Durkin states: "The motivation for Mr Iloski's offending is not clearly understood as he unequivocally denies having perpetrated these sexual offences against the victims. However, there is reasonable grounds to believe, given the information available, that interpersonal skills deficits have contributed to his risk in this domain...Thus, while it cannot be confirmed, it is considered plausible that Mr Iloski has sought connection in inappropriate places historically, such as in the case of the current offending, and with people who do not require him to conform to the typical responsibilities and commitment needed to form an intimate relationship. It does not seem that Mr Iloski is highly motivated to meaningfully engage on a consistent basis, and so abusive conduct may have met his transient desires for interpersonal engagement and connection (including at a physical level) but not come with the burden experienced by establishing a consenting adult relationship."
That may offer some explanation for the offender's offending, but it does not provide a cause for it or in any way reduce his moral culpability.
Returning to the indicative sentences:
As to Count 1, that was exposing his penis to DL while she swam between his legs in the swimming pool. A single offence but not an isolated offence in the circumstances of the evidence. The indicative sentence is 18 months' imprisonment.
As to Count 2, s 61M(2), exposing his penis as DL swam between his legs with contact between his penis and her. The indicative sentence is two years and as there is a standard non-parole period, the indicative non-parole period is one year, three months, that is, approximately 65% of the term.
As to Count 3, contrary to s 61M(2), on the same occasion as Count 2, seating DL on his lap, exposing his penis and contact between his penis and DL after they had been in the swimming pool. The indicative sentence is two years with an indicative non-parole period of one year, three months.
As to Count 4, s 61M(1), rubbing DL's genitalia with skin-on-skin contact. The indicative sentence is three years, six months with an indicative non-parole period of two years three months.
In respect of Count 5, contrary to s 66C(2), digital/vaginal intercourse. The indicative sentence is seven years. There is no standard non-parole period.
Count 6, contrary to s 61M(1), rubbing DL's genitalia with skin-on-skin contact. The indicative sentence is four years, and the indicative non-parole period is two years, eight months.
As to Count 7, again s 61M(1), again rubbing genitalia with skin-on-skin contact. The indicative sentence is four years with an indicative non-parole period of two years, eight months.
As to Count 8, again s 61M(1), touching her genitalia skin on skin contact. Again, the indicative sentence is four years with an indicative non-parole period of two years, eight months.
As to Count 9, in relation to KL, s 61M(1), placing his hand between her legs on her thighs near her genitalia while she was initially asleep in bed. The indicative sentence is three years with an indicative non-parole period of two years.
It will be evident from the variation of the indicative non-parole periods from the statutory relationship that I have found special circumstances. This is on the basis that it is the offender's first time in custody, although that in itself does not normally justify such a finding of special circumstances. However, in my view, considering his age now and his age when released, he will need a longer period of supervision to help him reintegrate into the community successfully. I have taken all of those matters into account that I have referred to. I have considered the question of totality and the offender will accordingly be sentenced to a term of imprisonment of 11 years with a non-parole period of seven years and two months, which is approximately 65% of the term. The balance of the term, that is, the parole period, is accordingly three years, ten months. The sentence will commence from the date that I refused bail, which is 30 August 2023. So, he will be first eligible for parole on 29 October 2030. The balance or the parole period is three years and ten months, and the total term of 11 years will expire on 29 August 2034. Is there anything that I have failed to mention? MARNEY: Nothing from the Crown, your Honour, thank you. CASTILLO: Nothing further, your Honour. HIS HONOUR: I must say, Mr Crown both yours and Mr Hoare's submissions on sentence in my view were entirely appropriate and to the point. MARNEY: Thank you, your Honour, I'm grateful.

R v Iloski

At a glance

Court

Decision date

Source

Judgment (3 paragraphs)

Parties

Cases Cited (3)