I firstly note that there is a statutory non-publication provision which prohibits anybody from publishing the names of the victims in this case, who I will be referring to, in any event, by initials.
The offender, Mr Benjamin Lamey, stood trial before a jury from 20 May 2024 on an indictment containing 14 counts of alleged sexual offences, some of them expressed in the alternative. On 31 May 2024, the jury found him guilty of counts 1, 4, 5, 6, 7, 8, 9 and 13. Count 1 is an offence under s 66EA(1) of the Crimes Act 1900 of maintaining an unlawful sexual relationship with a child. The maximum penalty for that offence is life imprisonment.
Counts 4, 5, 6, and 7 are offences under s 66A which carry a maximum penalty of 25 years' imprisonment and have a standard non-parole period of 15 years specified. Counts 8 and 9 are offences under s 61M(1) of the Crimes Act which carry a maximum penalty of seven years' imprisonment and a standard non-parole period of five years is specified. And count 13 is an offence under s 66C(2) which carries a maximum penalty of 20 years' imprisonment. The maximum penalties and, where applicable, the standard non-parole periods are guideposts or yardsticks of importance to which I have had regard.
[2]
FACTS
The facts for the purposes of sentence are for me to determine, but must be consistent with the jury's verdicts. Any matters in aggravation must be proved beyond reasonable doubt, but matters in mitigation need be proved only on the balance of probabilities. The Crown provided a document entitled "Proposed Facts Consistent with Jury Verdict", which the Crown submitted represented a summary of the evidence given at trial, insofar as it relates to the offences on which the offender is to be sentenced. While much of this document was not disputed, counsel for the offender took issue with some parts of it. I have, therefore, adopted that document to the extent that the evidence summarised in it is accepted and I will address any areas of dispute as I come to them.
The facts that I find are as follows. The offender was born on 13 August 1980. He was aged between 22 and 26 years at the time of his offending. There are three victims. AR, who was born in November 2000 and aged 6 at the time of the offences. MC, who was born in April 1998 and was aged 5 to 6 at the time of the offences, and MH, who was born in December 1995 and aged 11 at the time of the offences. The offender is the maternal uncle of MC, being the brother of MC's mother. AR and MH are sisters, with their mother being Melissa.
At the time of the offending the offender was good friends with Melissa's partner, Jamie. At times during his offending, the offender would regularly visit or stay over at Melissa and Jamie's house and he regularly babysat MH, AR and their other siblings. When he stayed at their home, he slept usually on a fold-out lounge in the lounge room.
Turning then to the offending involving AR. Between January and June 2007, when the offender was 26 and the victim, AR, was 6-years-old, the offender maintained an unlawful sexual relationship with her. That is, of course, the effect of the jury's verdict on count 1. There is a dispute, however, as to the nature and frequency of the sexual acts which were committed by the offender. The victim gave evidence to the effect that sexual things were done to her by the offender on a regular basis between January and June 2007. She said that the offender "touched my rude bits" and when asked how often, she said, "He touches it every time he comes over". She also said, "heaps of times" and "He keeps on touching them and never stops".
The victim, firstly, gave detail of two specific incidents. In the first specific incident she said she was sleeping in her room when the offender came and took her from her bed. She said he placed her on the fold-out lounge in the lounge room and then placed a blanket over her, pulled down her pyjamas and underwear and kissed her on the vagina. AR said she told the offender "don't" and "no", but he continued and that the offender said he would give her bubble gum. She said that although she again said no, the offender kept kissing her on the vagina.
The second specific incident which AR described was when she was in the family van being driven to soccer training and the offender was sitting next to her. She said that the offender put a blanket over AR's lap and that he touched her vagina with his finger through her clothing which she described as moving his finger "around in circles". She said that he continued to do this until the van arrived at the soccer field.
Having considered all of the evidence and, in particular, that of the victim, AR, I am satisfied beyond reasonable doubt that each of these two incidents occurred. However, the Crown submitted that I would also be satisfied beyond reasonable doubt that the unlawful sexual relationship included numerous other sexual acts. In this regard, the witness said that the offender would touch her sexually "every time" he would come over. There was evidence from the victim's father to the effect that the offender was over at the house pretty much every day and would stay over at least three nights per week. The offender was effectively a trusted member of the household. It is clear, therefore, that he had many opportunities to offend against AR.
The victim, AR, was, in my assessment, a credible and compelling witness. I formed this view based on the two police interviews that she gave and also on her pre-recorded evidence. I accept that her account was an honest one, however, given the standard of beyond reasonable doubt which applies to aggravating matters, I have taken care in determining what other sexual incidents I can be satisfied about to that very high standard.
As already noted, AR said she was touched sexually "heaps of times" and "every time that he comes over". She said in her second police interview that he touched her under a blanket "about eight times", although in her pre-recorded evidence she said she thought this was a big number when she was a child. She also referred to an occasion when the offender pulled down her pants and "he used to play the drums on my bottom". In cross examination, after being reminded of the two specific incidents, which I have earlier set out, she was asked about "these other six incidents" and in response said that it was "more than once on the lounge" and "more than once in the van".
Having considered the evidence, I am satisfied beyond reasonable doubt that, in addition to the two specific incidents I have detailed above, there was at least one further incident where the offender touched the victim's genital area through her clothes while they were sitting under a blanket on the lounge. I am also satisfied beyond reasonable doubt that at least one further incident of touching the victim's genital area through her clothes occurred when they were covered by a blanket in the van. I am further satisfied beyond reasonable doubt that there was at least one incident in which the offender pulled down the victim's pants and touched her buttocks with his hands, this being the "drums" incident.
I have considered the Crown's submission that the offending also involved an incident or incidents whereby the offender placed his finger "inside" AR's vagina. This was based, essentially, on AR's disclosure to her father that, "He touches my rude bits … he puts his finger in my rude bit and smells it. It stings." However, and as the victim agreed in cross-examination, she did not refer to this allegation in either of her police interviews, nor did she refer to it in her evidence-in-chief. In the circumstances, I am not satisfied about this allegation beyond reasonable doubt. I further note that even if the victim's reported description was accepted at face value, it is insufficiently precise to establish that the incident or incidents involved actual penetration.
I record the fact that, in my view, it is very highly probable that there were many more incidents than those about which I am satisfied beyond reasonable doubt. I am conscious of the fact that an important purpose behind s 66EA is to alleviate the difficulties inherent in a child giving accurate evidence concerning a series of sexual offences. However, given the limited degree of specificity in the victim's descriptions, I proceed to sentence and my assessment of the objective seriousness of count 1 on the basis that I have set out.
It was on Friday 8 June 2007 when AR was staying with her natural father that she disclosed the offending to him. The father then called the victim's mother and informed her of what had been disclosed. The offender did not return to the house after this, and matters were reported to the police.
Turning then to the offending against MC. When MC was 5 or 6 years old, she regularly attended her maternal grandparents' house in Raymond Terrace. At the time, the offender lived at that address. On three occasions when the victim was 5 or 6-years-old, the offender digitally penetrated MC's vagina while he gave her a "piggy back". He offender told MC that this was how, "Uncles show their love to their nieces".
On the first occasion, which is the subject of count 4, MC said that she was in the hallway of her nan's house during the day and the offender was giving her a piggy back. Her nan was in the kitchen. Whilst MC was on the offender's back, the offender put his hand into her pants under her underwear and touched the "back" of her vagina on the inside. The offender then put his fingers inside her vagina for a short time and "it just hurt very bad". MC pushed on the offender's head to try and get away from him. The offender then dropped her off his back and MC ran outside the house and "pretended nothing happened because she was too scared to tell anyone."
The second occasion, and this is the subject of count 5, occurred about four or five days later. MC asked the offender to give her a piggy back ride outside, which he did. During the piggy back ride, the offender put his hands into her pants and placed a finger into her vagina. MC struggled to get off the offender's back and so the offender let her go.
Count 6 is the third occasion involving a piggy back and occurred about two weeks after the offence in count 5. While in the kitchen, MC jumped on the offender's back and he held onto her by placing his hands into her pants. The offender's hands went inside her pants and he rubbed around her clitoris area under her underwear with his hand. He inserted his fingers into her vagina which caused her pain. His fingers moved around in her vagina for a short time. The victim said that it hurt "outside and inside". MC said that the offending happened for five minutes whilst the offender ran around the house with her on his back.
While I cannot be satisfied beyond reasonable doubt that the offending occurred for precisely five minutes, I am satisfied beyond reasonable doubt that it certainly was not brief and that it went on for some minutes.
Turning then to count 7. On 12 March 2005, MC's parents went to a birthday party and the offender babysat MC and her brother. That evening, MC was in her bedroom on the top bunk bed playing with dolls. The offender came into the bedroom and asked her to get onto the bottom bunk. When she said, "No, no, no", the offender picked her up and lay her on the bottom bunk. The evidence of MC, which I accept, was that he then "Put his hands in my pants and then put his hands inside my vagina". This went on for a number of minutes.
MC distinguished this offence from the piggy backing incidents by saying "So his fingers were actually, like, they fully went inside me, whereas, with the piggy backing, they didn't go all the way in". When the offender stopped, MC ran into the lounge room and hid under a chair that her brother was sitting on. MC disclosed the abuse to school friends in 2009. As a result of a teacher becoming aware of the complaint, the matter was referred to police. MC was interviewed in November 2009, but no charges were laid as both MC and her mother did not want her to go through the Court process at that time. However, MC made a subsequent police statement as an adult in 2018.
I turn, then, to the offending involving MH, commencing with count 8. On one occasion when the offender was babysitting in early 2007, there was a fight over the television and MH, who was then 11 to 12-years-old, took the offender's hat and threatened to flush it down the toilet. Later that night MH was in bed in her room when the offender came in to say goodnight. The offender approached MH, crouched by the bed, put his hand under the doona and grabbed her thigh over her pyjama pants. He then rubbed her vagina through her pyjama pants. The offending did not go on for long because MH squirmed and the offender got up and left the room.
Turning to count 9. On this occasion, MH, AR and the offender were in the backyard of the family home. MH was wearing her primary school uniform. The offender offered MH a piggy back and MH jumped on his back from the trampoline. The offender then ran to the fence with his hands supporting MH's buttocks. He then turned and began walking back towards the trampoline. The offender then moved his hands from MH's bottom to the inside of her school shorts. He was trying to pull MH's underwear to one side and kept rubbing the entrance to her vagina.
Count 13. The offender was babysitting MH and her siblings while Melissa and Jamie were out of the house. MH was in bed when the offender entered her room to say goodnight. He approached the bed and put his hands under the blanket. The offender then, "quite roughly" put his fingers inside MH's vagina. He was trying to move her underwear out of the way and MH described that "his fingers and my underwear were both kind of going inside me". The digital penetration was "really hurting and painful" to MH and the offending ended after a few minutes when MH rolled over. The offender then left the bedroom.
MH was interviewed by police in June 2007, after AR had come forward, but MH did not disclose the offences at that time. MH said that she thought she would get into trouble if she spoke about what had occurred. However, MH made a police statement as an adult in 2018 in which she disclosed the offending.
The offender originally was arrested on 26 July 2007 in relation to the allegations by AR. In 2007, he participated in an ERISP interview in which he denied those allegations. Although the offender was originally charged in relation to offences committed against AR, these were discontinued in March 2009. It was on 14 October 2019 that charges were laid against the offender in relation to MC and MH. At that time, he was residing in Queensland. Police sought an extradition warrant and on 6 January 2020, the offender was arrested at his address in Queensland. On 7 January 2020, the offender was granted conditional bail at Hervey Bay Local Court in Queensland to appear at the Newcastle Local Court on 17 January 2020.
On 17 January 2020, a detention application was granted and the offender was refused bail, but was released on bail by the Supreme Court of New South Wales on 31 March 2020. In May 2020, AR provided an additional statement as an adult in relation to the offender and, as a result, on 29 May 2020 he was re-charged with offending against AR.
[3]
OBJECTIVE SERIOUSNESS
Turning then to considerations of the objective seriousness of the offences.
Firstly, the seriousness of the sexual abuse of children has been emphasised many times, especially in recent years. That is because of the realisation of the serious and usually long-term effects of such abuse on victims and also the prevalence of such offending. In R v Gavel [2014] NSWCCA 56 at 110, it was noted that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives. Sexual abuse of children inevitably gives rise to psychological damage. The absolute prohibition on sexual activity with a child is founded on a presumption of harm and is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity.
I turn then to consider the objective seriousness of count 1 which relates to AR. The offence in count 1 is one of maintaining an unlawful sexual relationship with a child. In RA v R [2024] NSWCCA 149, Wilson J set out, at para 102, a non-exhaustive list of matters relevant to the objective seriousness of such an offence. In relation to these, I make the following observations and findings.
Firstly, the offending extended over a period of up to six months. The relationship was one in which the offender was a trusted member of the victim's family, being a very close friend of her father and a regular visitor to the house. As a trusted adult in the house, he was also in a position of some authority over the victim. At the time of the offending, the victim was 6 years old and so very much towards the lower end of the age range for a "child", while the offender was in his mid-20s, and so a great deal older.
As to the number of incidents beyond the statutory threshold of two, I have made findings beyond reasonable doubt that the count 1 offence involved a minimum of five incidents. Firstly, the specifically described incident of cunnilingus. Secondly, the specifically described incident involving touching of AR's genitals through her clothes while travelling in the van. I have also made findings beyond reasonable doubt that there was a further incident where the offender rubbed the victim's genitals through her clothes while they were sitting under a blanket on the lounge and another incident of the same nature, when covered by a blanket in the van. Furthermore, I have found beyond reasonable doubt that there was an incident in which the offender pulled down the victim's pants and touched or played with her buttocks with his hands.
I am unable to come to any clear finding as to the frequency or time gap between the five incidents to which I have referred, other than to find that they occurred during the period from about early January to about early June 2007.
Section 66EA(8) requires that in imposing sentence I must take into account, but I am not limited by, the maximum penalty for the unlawful sexual acts engaged in by the offender during the period in which the unlawful sexual relationship existed. Clearly, the most serious of the unlawful sexual acts was the cunnilingus, which amounted to sexual intercourse with a 6-year-old child and at that time carried a maximum penalty of 25 years as a stand-alone offence.
The other incidents, which involved either touching the victim's genital area through her clothes or touching, in a skin-on-skin manner, her buttocks, are less serious but still of a serious nature. Given the child's age and the breach of trust and authority involved in all of the offending, these are all offences of aggravated indecent assault under s 61M(2) which carried a maximum penalty as a stand-alone offence of ten years' imprisonment. The incidents making up the count 1 offence were relatively brief in duration. However, while this is relevant, it is of limited significance because offending of this kind is capable of having a profound and deleterious effect on victims for many years, if not the whole of their lives: Croxon v R [2017] NSWCCA 213 at [38].
I also accept that the offending was opportunistic and did not involve planning or sophistication. Furthermore, it did not involve gratuitous threats or violence or any physical injury which would have aggravated the offending if these elements had been present. However, the absence of threats or violence is not a matter that mitigates the offence because sexual offences against children are easy to commit due to the compliant nature of children, especially when the offence is committed by a trusted adult.
Having had regard to all of the circumstances I have described, I regard this as a relatively serious example of this type of offence and one that is well above the low range but below the mid-range of objective seriousness.
Turning then to the objective seriousness of the four offences committed upon MC. The count 4 offence involved the offender penetrating MC's vagina with a finger or fingers. It occurred when he was piggy backing her in the hallway at her nan's house. The offender put his hand inside the victim's underpants and penetrated her vagina with at least one finger which hurt the victim badly. It was a relatively brief offence because the victim kept trying to get off the offender's back. The victim, at the time, was aged 5 or 6 and, therefore, well under the age of 10 which forms an element of the offence, while the offender was aged in his early 20s.
It was an offence that involved a breach of trust and authority. The offence appears to have been opportunistic rather than planned and there is no evidence of threats or additional violence. I assess this as an offence well above the low range but below the mid-range of objective seriousness.
Count 5 is another offence of sexual intercourse with a child under the age of 10. It involved the offender using a finger to penetrate the victim's vagina while giving her a piggy back in the backyard. The penetration was fairly brief because the victim was trying to get off the offender's back, but it caused her considerable pain. At the time she was aged 5 or 6 and thus well under 10, while the offender was in his early 20s. It again involved a breach of trust and authority and occurred at the victim's home. Again, I regard it as an opportunistic and unplanned offence which did not involve any threats, additional violence or lasting injury. It is an offence well above the low range but below the mid-range of objective seriousness.
The count 6 offence occurred not long after the count 5 offence. Again, it involved digital penetration which was painful. The other aspect of the offence was essentially the same as for count 5. I regard this as an offence well above the low range but below the mid-range.
Count 7 is another offence committed upon MC. It occurred when the offender was babysitting her in her home when she was aged 5 or 6 and he was in his early 20s. The offender took the victim from a top bunk and placed her on the lower bunk and then inserted a finger or fingers into her vagina with the penetration being considerably more than the previous incidents and which caused the victim considerable pain. The offence was preceded by the victim protesting and saying, "No, no, no" before the penetration occurred. It also resulted in the victim crying and running into the lounge room to hide under a chair that her brother was sitting on. The offence involved a breach of trust and authority but was opportunistic rather than planned and did not involve any gratuitous violence or threats of that kind. I regard it as an offence slightly more serious than counts 4, 5 and 6, but below the mid-range of objective seriousness.
Turning then to the objective seriousness of counts 8, 9 and 13 relating to MH. The count 8 offence involved the offender rubbing the victim's vaginal area through her underpants and pyjama pants. It was relatively brief although that was due to the victim squirming rather than any spontaneous decision by the offender to stop. The offence occurred in the victim's bed and in her home where she should have been safe. It involved a breach of trust and authority as the offender was babysitting at the time. The victim was 11 to 12 years of age, and so comfortably under the age of 16, while the offender was in his mid-20s and, thus, considerably older. The offence however was fairly brief, did not involve any threats, pain or injury and was opportunistic rather than planned. I regard it as an offence comfortably above the low range but below the mid-range.
Count 9 occurred on an occasion when the offender was giving MH a piggy back. It occurred after the offender had run towards the back fence with MH on his back and when he was walking with her still on his back. At that time, he moved his hands from underneath her bottom, placed his hand inside her school shorts and rubbed the entrance to her vagina. As the victim said that the offender was "trying" to pull her underwear to one side, I am unable to be satisfied that the offence involved skin-to-skin contact.
The offence occurred at the victim's home. It involved a breach of trust and authority. The victim was 11 to 12 years of age and thus comfortably under 16 years, while the offender was in his mid-20s and therefore considerably older. I am unable to determine the duration of the offending but it was not brief or momentary and the victim said that as it went on, it became rougher and was painful. There is no evidence, however, of threats or any physical injury or any additional violence. I regard it as an offence approaching the mid-range of objective seriousness.
The offence in count 13 is one of sexual intercourse which also occurred at a time when the victim was aged 11 to 12 years. The offence involved digital penetration whereby the offender's finger or fingers and the victim's underpants were pushed into her vagina. It caused the victim considerable pain. While I cannot determine the duration of the offence, it was not brief, as the victim said it went on for "only" a few minutes and only stopped because the victim was squirming and eventually rolled over.
The victim was in her bed in the family home where she should have been safe and there was a breach of trust, given that the offender was entrusted with the victim's care by her parents. I note, however, that while the victim was also under the authority of the offender, this is an element of the offence and not an aggravating feature. The victim was comfortably under the 14 year threshold referred to in this offence, whereas the offender was much older, being in his mid-20s. On the other hand, there is no evidence of threats or additional violence or any lasting injury. I regard this as an offence approaching the mid-range.
As noted earlier, I have, in my assessment of the objective seriousness of the various offences, made findings that they involved a breach of trust and authority, although, as noted just now in relation to count 13, "authority" is an element of that offence and not a matter that adds to its inherent objective seriousness. Where I have made a finding of breach of trust and authority, this is based on the fact that the offender was, respectively, the maternal uncle of MC and was a close friend of the parents of AR and MH and would often babysit them. Where I have found that an offence involved a breach of both trust and authority, I have taken care not to double count these aspects because, in my view, there is a great degree of overlap between them, at least in the context of this case.
I have, in my assessment of objective seriousness, found that many or most of the offences were relatively brief in duration. However, while this is relevant, it is of limited significance because offending of this kind is capable of having a profound and deleterious effect on victims for many years, if not the whole of their lives: Croxon v R [2017] NSWCCA 213 at para [38]. I also accept that the offences were opportunistic and did not involve planning or sophistication. Furthermore, they did not involve any gratuitous threats or violence which would have aggravated the offences if these elements had been present. However, the absence of threats or violence is not a matter that mitigates the offences because sexual offences against children are easy to commit because of the compliant nature of children, especially when the offence is committed by a trusted adult.
[4]
VICTIM IMPACT STATEMENTS
Victim Impact Statements by AR and MC were admitted in evidence on sentence. The Victim Impact Statements in this case are not relied upon by the Crown as aggravating the offending and I do not treat them that way. However, they provide clear confirmation of the serious and often life-long psychological scars that are the almost inevitable result of sexual offending against children. And furthermore, the statements confirm the helpless position in which the victims were placed. Although there was no Victim Impact Statement admitted into evidence in relation to MH, I have no doubt, given the presumption of harm arising from the sexual abuse of children, that the effects and consequences have been similar for her.
[5]
SUBJECTIVE MATTERS
I turn then to consider matters relating to the offender's subjective circumstances. He is now aged 44. As already indicated, the offences before the Court were committed when he was in his early to mid-20s. He has no prior convictions for sexual offences. However, he has a number of convictions for offences involving breaking and entering and dishonesty which were committed around 2005 to 2006 which operate to disentitle him to the leniency that he might receive if he was a first offender.
The offender's subjective case has been placed before the Court by a quantity of written material. The psychological report of Dr Bollinger notes that the offender's childhood was positive with no suggestion of domestic violence, sexual abuse or exposure to drug and alcohol abuse. He suffered some bullying at school and left after year ten. Since then, he appears largely to have been employed in a variety of jobs and at the time of assessment by the psychologist, he was driving trucks.
He has a history of some alcohol and drug usage but this does not appear to have been at problematic levels. He told the psychologist, however, that, at the time of the offences, which he still denies, he was using illegal drugs on a fairly regular basis. The psychologist suggests that it is likely that this played a part in the offending. However, even if that is so, it provides no mitigation of the seriousness of the offences. He has had only two major relationships in his adult life. The second one being with his current wife with whom he has been together for about 24 years. His wife gave birth to a stillborn baby in 2014 and this remains a matter of significant distress for the offender and his wife. However, he and his wife now have a two-and-a-half-year-old daughter.
The psychologist concluded that the offender meets the criteria for major depressive disorder and generalised anxiety disorder, but it is not suggested that there is any link between these conditions and the offences. As was accepted in submissions on behalf of the offender, there is nothing in the report of Dr Bollinger to support some reduction in the offender's moral culpability, nor is there anything else in this case which reduces the offender's moral culpability, which I consider to be fairly high.
[6]
DELAY
Another relevant matter in this case is delay. There has been a significant delay in the offences coming to trial and sentence. The offences were committed when the offender was in his early to mid-20s, whereas he is now nearly double that age. It has been said that, "sentencing for a stale crime long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach.": R v Todd [1982] 2 NSWLR 517.
However, the principle referred to in R v Todd may not apply, or may not apply with such force, in a case where the offender has remained silent and hoped that his offending remains undetected: R v Cattell [2019] NSWCCA 297 at [140]. In such cases, the offender will often have enjoyed the benefit of a place in the community to which, usually, he was not entitled: R v Cattell, earlier cited; R v Obbens [2022] NSWCCA 109 at [20]. These observations might be said to have some application to the case now before the Court.
On the other hand, where an offender has, during a period of delay, undertaken or undergone a process of rehabilitation, this may affect the sentencing exercise by lessening the significance of general deterrence: PH v R [2009] NSWCCA 161 at [32]. In Thorn v R [2009] NSWCCA 294 at [57], the Court found that during a seven-year delay between offending and sentence, the offender had not only completely reformed, but had also matured from a misguided youth with a compulsion to gamble into a well-respected citizen with honest and steady employment on the threshold of marriage.
These observations from these cases, in my view, are also of relevance to the case before the Court. Firstly, there is no evidence that the offender has committed any offences since 2007. Secondly, and relatedly, it is relevant to note that during that time, as explained in the character references admitted in evidence, the offender has had frequent contact with numerous young children from his extended family. Thirdly, there is evidence that during that period, the offender has maintained a stable relationship with his now wife, who remains completely supportive of him, as do various other members of his family. Associated with this is the fact that the offender and his wife have a two and a-half-year-old child. Fourthly, there is evidence that during the period of the delay the offender has engaged himself in regular full-time employment.
In my view, the combined effect of these matters point towards a conclusion that the offender has achieved a great deal towards his own rehabilitation. In my view, this is a matter which reduces the importance of general deterrence.
I also take into account the fact that, since the victims' allegations came to light and particularly since the offender was initially charged, he has experienced the stress and uncertainty of potential criminal proceedings hanging over his head. This is a matter commented on in the letter to the Court from the offender's wife who said, "For the past 17 years, a dark cloud has hovered over our household. No long-term plans nor goals could surely be set in motion."
While it would not be correct to describe this as a "punishment", it is another part of the offender's overall subjective circumstances to which I have given some weight.
[7]
MORE ONEROUS CUSTODY
I accept further, that the offender's time in custody will be more difficult than would otherwise be the case for three reasons. Firstly, because of the psychological conditions which are referred to in the report of Dr Bollinger. Secondly, and perhaps more significantly, because he will be geographically separated from his wife and child who live in Queensland and who are unable to relocate to New South Wales due to aging parents. It is unlikely, therefore, that the offender will receive regular visits from his wife and child. Thirdly, because the offender is likely to serve his time in custody under more restrictive conditions, due to the nature of his offending. This conclusion is given some support by the offender's custodial history, which confirms that as at 26 June 2024, he was housed in a Special Management Area Placement, "SMAP", which to the Court's knowledge, involves a form of protective and thus more restrictive custody.
[8]
RISK AND REMORSE
There is no remorse in this case because the offender categorically denies the offences, despite the compelling and credible evidence given by each of the victims.
The psychologist, Dr Bollinger, concluded that the offender is a low risk of reoffending. The risk assessment contained in the sentencing assessment report, however, notes that he is a medium-low risk based on the LSI-R assessment tool. In my view, based on these assessments but also on the fact that there has been no evidence of other offending since 2007, the offender's risk might be described as low.
In my view, the offences before the Court and the others on his record which all date from around the same time, were in part the product of the offender's immaturity, his drug use, and his apparent lack of regular employment around that time. I do not suggest that any of these matters mitigate the seriousness of his offending. However, having regard to the risk assessments, but also to the offender's recent good history of employment and the fact that he has family support, I think his prospects of rehabilitation are reasonable.
[9]
DETERMINATION
In determining the ultimate sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which I do not intend to recite.
I am satisfied that the so-called threshold in s 5 of that Act is crossed. In other words, that no penalty other than imprisonment is appropriate.
In determining the sentence, I have also had regard to the requirement in s 25AA of the Crimes (Sentencing Procedure) Act which requires that the Court have regard to the trauma of sexual abuse on children as understood at the time of sentencing. And furthermore, the provision, which I think is now contained in s 21B, that the Court is to have regard to sentencing patterns as they currently exist, rather than those that applied at the time of the offending.
I have found this case a difficult sentencing exercise. That is most fundamentally because of, firstly, the need for the sentence to recognise the serious nature of the offences and the fact that there were three young victims. But, secondly, to not lose sight of the fact that, at the time these offences were committed, the offender was a very different person with a very different life to that which applies today. The sentence that I intend to impose involves a balancing of these competing considerations, as well as the various other matters to which I have referred.
I intend to impose an aggregate sentence. I am, therefore, required to set out the indicative sentences that I would otherwise have imposed.
Mr Lamey, these are what are called indicative sentences, they are not the ultimate sentence, I will make that clear in a moment. The indicative sentences are as follows. For count 1, a head sentence of six years, nine months. For counts 4, 5 and 6, a head sentence of three years, three months and a non-parole period of one year, ten months.
For count 7, a head sentence of three years, four months and a non parole period of one year, ten months. For count 8, a head sentence of 18 months and a non-parole period of ten months. For count 9, a head sentence of 19 months and a non-parole period of ten months. And for count 13, a head sentence of three years.
[10]
TOTALITY
In determining the overall aggregate sentence, I have had close regard to totality principles, including the need to ensure that the ultimate sentence is not a crushing one. This is a particularly important aspect, given the observations and findings that I have already made about the progress that the offender has made towards his rehabilitation.
Totality, of course, includes consideration of the extent to which there should be any notional accumulation among the sentences for the various crimes. In my view, there does need to be some notional accumulation so as to recognise that there are, indeed, three victims, and also to acknowledge the various individual crimes committed on separate occasions.
[11]
SPECIAL CIRCUMSTANCES
I have made a reasonably generous finding of special circumstances based on this being the offender's first period of full-time custody, the onerous nature of that custody and the need for him to be subject to a reasonably lengthy period of supervision after release to parole.
The offender is convicted.
I impose an aggregate head sentence of eight years, six months. I impose a non-parole period of four years, nine months. Each of those will date from 13 March 2024, so as to account for time already served. The head sentence, therefore, will expire on 12 September 2032. The non-parole period will expire on 12 December 2028.
Thank you, Mr Lamey. No doubt your lawyer will speak to you further about all of that.
OFFENDER: Thank you, your Honour.
[12]
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Decision last updated: 21 October 2024