The Offender appears today in court for sentence in relation to six counts together with an additional charge on a Form 1 in relation to incidents that occurred some time ago and also in relation to possessing child abuse material more recently.
The Offender was born on 27 October 1964 and is now 55 years of age. He was made redundant from his employment at the age of 50 and his life spiralled into alcoholism and gambling.
The charges for which he is to be sentenced are as follows:
1. Count 1 indecent assault where the victim under the age of ten in contravention of s 61M(2) of the Crimes Act 1900 NSW. That carries a period maximum penalty of ten years imprisonment and there is no standard non-parole period;
2. Count 2 is the same charge with the same maximum penalty involving the same victim;
3. Count 3 is the same charge with the same maximum penalty involving the same victim;
4. Count 4 is the same charge with the same maximum penalty involving the same victim;
5. Count 5 is a charge of commit an act of indecency with victim under the age of ten years in breach of s 61O(2) of the Crimes Act 1900 that carries a maximum sentence of seven years imprisonment. Again, the same victim was involved in that offending.
6. Count 6 is the possession of child abuse material in breach of s 91H(2) of the Crimes Act, which carries a maximum penalty of ten years imprisonment.
There is an additional charge which is sequence 4 in the charge number, namely another count under s 61M(2), that is indecent assault with victim under the age of ten. That sequence or charge attaches by way of a Form 1 document to count 2.
The Offender was committed for sentence on 31 October 2019 from the Central Local Court, and that will be reflected in the discount on sentence which that guilty plea attracts. He has been in custody since 21 March 2019, when he was arrested. The commencement date of his sentence will therefore be 21 March 2019.
The evidence on sentence comprised the Crown Sentence Summary (Exhibit A). Within that bundle was the indictment upon which the Offender was arraigned, the Form 1 document previously referred to, together with a Statement of Agreed Facts. The Statement of Agreed Facts provide as follows:
On 28 February 2019 the Offender sent a text message to his sister saying "I'm sorry for what I have done. I love you. Goodbye." Worried about his safety, she contacted police, who located him a few hours later. He advised police that he attempted to commit suicide by jumping in front of a bus. The Offender was conveyed by ambulance to Royal North Shore Hospital where he was scheduled by police pursuant to the Mental Health Act 2007 NSW.
On 1 March 2019 he disclosed to a nurse and also a psychiatrist at the hospital that he committed acts of child sexual abuse. The Offender was made aware that the police would be informed, and then provided further details of the assaults.
He was discharged from hospital on 4 March 2019.
On 10 March 2019 police received information from Family and Community Services that the Offender told hospital staff that he sexually assaulted his nephew over 20 years ago.
Police then commenced their investigation. They spoke with the Offender's nephew, that is the victim, who particularised six discrete acts of sexual assault in context of there being other uncharged acts. These incidents were not isolated. The Offender committed similar acts upon the victim with no less than seven occasions between the ages of six and nine.
The following facts relate to sequence 1 or count 1.
The Offender was babysitting the victim when he was seven years old. The Offender asked the victim to take off his pants and show the Offender his penis. Once the victim's pants were down, the Offender asked him to play with himself. The Offender then asked to touch the victim's penis. The victim did not reply. The Offender touched and rubbed the victim's penis. The victim felt shocked at what was happening. At some point the victim's sister opened the door, giving the victim a chance to run out of the room.
The following facts relate to sequence 2 which became count 2 on the indictment.
Sometime between May and September 1997, when the victim was eight years of age, the Offender picked him up after a soccer game and they were travelling back to the Offender's unit at Lane Cove to stay the night. While the victim was sitting in the front passenger seat, the Offender reached across with his left hand, and started touching the victim's penis on the outside of his clothing. The victim felt helpless and did not know what to do. The victim tried to keep taking about fish and his soccer match. The victim remembers the Offender starting talking about their "special game", which the victim knew would involve the Offender touching his penis.
The following facts relate to sequence 3 which became count 5 on the indictment.
Later the same day the victim was standing in the main living room near the front door. The Offender asked him to take off his pants and started playing with himself. The victim knew that this meant the Offender wanted him to rub his penis. He remembers rubbing his penis while the Offender watched. The Offender asked, "don't you get a stiffy", to which the victim replied "what's a stiffy?". The Offender then said, "You know like a red rocket when your doodle gets hard". The victim said "I don't want to do that, why don't you do it". The Offender then unbuttoned his own jeans, took out his penis and started touching his penis in a way the victim now knows to be masturbation. The victim was very scared and did not know what to do. He got upset and told the Offender to stop, which he did.
The following facts related to sequence 4 which, by reason of a Form 1 document, attached to count 2.
Later that same night, the victim was asleep on his stomach in the Offender's bed. The victim woke to feel the Offender's hand on his bottom. He felt the hand move from his bottom and try to get around his penis. The Offender fondled the victim's penis and groin area. The victim tried to push all his body weight down into the bed to make it harder for the Offender, to get his hand underneath him and touch his penis. After a while the victim fell back asleep.
The following facts relate to sequence 5, count 3, on the indictment.
The victim recalled another incident at the Offender's house when he was about eight years old. The victim made sure to stay close to his sisters all night, as he knew that the Offender would not touch him in front of them. When it was time for bed the Offender said that the victim needed to sleep in his bed, and that he sisters would sleep in the spare room. The victim started to cause trouble, and yelled that he wanted to go home. One of his sisters said that she would sleep in the Offender's bed, and that the other sister and the victim would sleep in the spare bedroom.
Sometime in the night the victim woke up to see the Offender kneeling by his bed. He had one hand on his bottom, and was moving it around to his groin and penis. The victim's sister was in the room and asleep. The Offender pulled down the victim's pants and started rubbing and touching his penis, after a while the victim tried to stop him by rolling his body away from the Offender.
The following facts relate to sequence 6, count 4 on the indictment.
The Offender was driving the victim home when he was eight or nine years old. As they were driving along Epping Road, the Offender had his left hand across the victim's lap and fondled his penis. As they got to the tennis courts and parked near the intersection of Delhi Road, the Offender handed the victim a $2 coin from the console and said it was for the victim to have for keeping it a secret. The victim knew this meant that he could keep the money for not telling anyone what the Offender was doing to him. The victim refused the money, and saw that this worried the Offender. Shortly after this incident the abuse stopped.
On 21 March 2019 police interviewed the Offender, at which time he made full admissions to sexually abusing the victim. He told police that one of the reasons he had tried to commit suicide was because of the remorse that he was feeling about what he had done to his nephew 20 years ago. He also admitted to viewing child abuse material on two computers.
The following facts relate to sequence 7, that is, possession of child abuse material which is count 6 on the indictment.
Forensic analysis of the Offender's Toshiba hard drive and Corsair tower revealed the following:
1. over 178 images depicting child abuse material in line with category 1 on the INTERPOL Baseline scale;
2. ten images depicting child abuse material depicting category 2 on the INTERPOL Baseline scale; and
3. four videos depicting child abuse material in line with category 1 on the INTERPOL Baseline scale.
Those are the Agreed Facts signed by the Offender and his solicitor, as well as the Crown.
Further to the Agreed Facts is an additional document which contains a summary of the child abuse material. I do not intend to read it out verbatim, however I note the following:
1. that on the Corsair PC tower images revealed young naked teenager performing oral sex on a naked male adult.
2. an image of a clothed adult male performing oral sex on a prepubescent child with his trousers pulled down.
3. an image of two naked male children appearing to be performing anal sex.
On the Toshiba hard drive were the following:
1. an image of an adult male penis penetrating the anus of what appears to be a male child;
2. images of two male prepubescent children performing sexual acts on one another; and
3. an image of a naked young teenager performing oral sex on another naked young teenager.
I previously referred to the INTERPOL Baseline scale. Categories 1 and 2 were enlivened by the material found on those computers.
Category 1 images depict real prepubescent children under the age of 13 and the child is involved in a sex act, and all the material is focussed on the anal or genital region of the child. As previously mentioned, some of the material fell within category 2, which includes a person who to be a child, and is depicted or described in a way that reasonable persons would regard as being offensive. This includes images of a child engaged in or apparently engaged in sexual activity.
The Court was informed by the Victim Impact Statement read to the Court by a volunteer on the last occasion. It forms part of Exhibit A, and I do not intend to read it all onto the record again. It is sufficient to note that the offending perpetrated by the Offender, albeit some two decades or so ago, has had a significant impact upon the victim, the Offender's nephew, which resulted in changes in his behaviour and attitude, as well as his social engagement with other people. The victim has difficulties trusting other people, seldom leaves the house to partake in physical activities, and rarely finds the confidence to socialise. These are common features that adults who as children were sexually abused.
In the last few years the victim has been attending counselling, at his own expense, and is still in need of further counselling. He has adopted a number of coping strategies, however memories of what occurred to him return. He refers in his Victim Impact Statement to mental stress affecting his physical health. It has also caused a divide within the family, causing the victim to feel a huge sense of guilt, which weighs upon his familial relationships.
He goes on in some detail to refer to his insecurities, both socially and professionally, acknowledging that although the sentence may be the end of this stage for the Offender, it will not end for the victim today.
It is sad to read that the thought of having his own children is too much to imagine as the thought of changing nappies and bath time is too much for the victim to bear.
Also within Exhibit A is the Offender's criminal record, containing one offence of driving under the influence of alcohol in 2002. His record is such that it is not an aggravating factor pursuant to the statute.
I also note I have the Corrective Services Record which shows the Offender has been a compliant prisoner, and there are no incidents relating to his time spent in incarceration.
The Court also has been assisted by a report by Ms Yiota Zingirlis, a forensic psychologist, who saw the Offender during the course of a three hour assessment on 20 December 2019. She also had access to a number of documents, including the Agreed Facts, the Justice Health Records and a witness statement from Mr David Bell of 6 May 2019.
In para 13 of the report the psychologist stated that, during the interview, the Offender reported that when he engaged in the offences towards the victim he denied that he was experiencing any physical or mental health issues. He stated that he was still residing with his mother, was employed, and was generally happy. He explained that he first became aroused by younger children in his 20s, although was "not sure how it started, it wasn't because I was abused. I often wonder how it started". He reported developing a "curiosity" about those sorts of things, how they (referring to under age boys) "handled being stimulated." He reported that he never tried to be forceful towards the victim and would ask "do you mind" occasionally, stopping when told to. He said the sexual activity gave him pleasure, and at the time he did not think that it would have had an impact on the victim.
He said to the psychologist that if he had known the effects on his nephew and the rest of the family he would not have engaged in that activity. He believed his nephew told his parents, that is the Offender's sister and brother‑in‑law, at the time the incidents occurred. He found it strange that they did not have an "all-out brawl", and instead cut ties with him.
He stated since the offences against the victim he had been "quite straight over the last 20 years", up until two years ago when he came across child abuse material over the internet. He reported viewing this material between once a fortnight to once every few months, although the last time had been quite a while before his arrest. He thought he had deleted the images but they were recovered by the police on inspection.
The Offender reported the images and videos were predominantly young males engaged in sexual activity. He said the images were from stumbling across one website. He stated that the preferred age range was 12 year old boys, and "some a bit older", although he did not have anything, and I take that mean a reference to the pornography, below ten.
The Offender described his arrest as a relief, reporting that he had been expecting a knock on the door for the past 20 years. He stated that his arrest had given him a bit of closure.
The psychologist took a psychosocial history of the Offender which was generally unremarkable. It also refers to his education and occupational history, which again was generally unremarkable, save for some bullying at school which caused him to suffer some disinterest in his education. He left school after Year 10 to commence an apprenticeship with Telstra, which he was unable to complete, as he failed the mechanical side of things. He then commenced doing clerical work. He went to TAFE to complete his HSC, later completed an information technology and data processing certificate, and worked for Telstra and IBM in various roles as a technician, system administrator and data analyst. He had been employed from the age of 17 up until the age of 50, when in 2014 he was made redundant. Whilst employed he had changed positions every five years or so. Since he lost his employment he unfortunately declined to gambling and alcohol use, which I will return to in a moment.
On page 4 of the psychologist's report, under the heading 'sexual history', the psychologist provides information as to that topic. The Offender denied ever having any intimate relationships or sexual activity with age appropriate peers, male or female. As an adult he went out with groups of friends. In his fourties he went to singles events, although had not met anyone. He said that "his preference these days is adult women" and that he is "not into kids anymore and hadn't done anything with kids for the last 20 years". Whilst there is no record of him doing anything with kids over the last 20 years, plainly since that time he has downloaded the pornography previously referred to, demonstrating a continued interest in paedophilic material.
The Offender denied any history of experimenting with illicit substances. He commenced drinking at the age of 18, and it was generally unremarkable up until the time he was made redundant. He also began gambling over the last ten years, and considered himself to be somewhat addicted. Neither the alcohol consumption nor the gambling, however, are in any way related to the offending.
Under the heading 'psychiatric history' there is a reference to a statement which I do not have from a David Bell. It is not entirely clear who he is, although in paragraph 43 of the report he is referred to as Dr David Bell, unlike earlier in the report. In any event, there is reference there to financial issues being part of the trigger of drinking and gambling, as well as the fact that he was ostracised from his family, apart from his mother.
After he lost his job, the Offender became increasingly depressed and preoccupied with what he had done to his nephew in the past. It is recorded that in February 2019 he sent the text of apology to his sister, which suggested that he was planning to commit suicide. As has previously been noted, his sister alerted the police, who arranged for the Offender to be put into hospital, at which time the disclosures leading to these charges were made.
In terms of matters relating to the Offender's health, again, the matters referred to by the psychologist are generally unremarkable. I note in paragraph 52 that The Offender reported that his current health was generally quite alright.
In paragraph 71 of the report the psychologist referred to a personality trait of being adventurous, risk-taking and a tendency to be impulsive. That does not appear necessarily to be an assessment which is temporally fixed, but from my recollection, the defence attempted to link that personal trait to some of the offending during the course of the sentence hearing. Whilst it is possible that it may be related, I am not satisfied that a link is established on the evidence.
The psychologist diagnosed a condition of paedophilic disorder, stating that he has been aroused with sexual urges towards prepubescent males, having accessed child abuse material and acted on these urges through the indecent assault towards a prepubescent male relative in his care, evidencing his sexual preference towards children.
Although he reported significant stress and remorse, the psychologist's view was that this seemed to be more in relation to the impact of his actions on the victim and his family, rather than distress associated with his experience of arousal and sexual urges towards children. It is not quite clear whether that sentence contains a typographical error, but the effect of what is being said by the psychologist is that the remorse seems to be directed towards the impact of the offending upon the family and the victim.
Further, the psychologist diagnosed an alcohol abuse disorder and a gambling disorder. Once again, there is no suggestion that those two latter conditions were in any way related to the offending.
I had the advantage of the Offender giving evidence on the last occasion. I recall making a point of observing that I considered the Offender to be an impressive witness who had demonstrated genuine remorse was linked to that reference, at the bottom of T 15 it appears from me as follows:
"can I say for the record, because I will be reserving, that I thought that the Offender presented as a credible witness and appears to demonstrate genuine remorse".
I maintain that view. The Offender gave evidence in a way which can only be described as open and frank. There is no doubt that he accepted responsibility for his offending and he acknowledged the harm which his offending has done to his nephew. At no stage did he attempt to explain away or downplay his offending, accepting the full consequences of it. He agreed that the offending occurred in the context of babysitting or driving the victim in the Offender's car, and that the offending occurred during periods of sleepovers, often at the Offender's own home.
In re‑examination the Offender was asked about any planning and babysitting, and particularly at p 13, line 27:
"Q. When you agreed to babysit as you knew it was asked of you that you would?
A. Mm.
Q. Was it in your mind that that would be an opportunity to molest [REDACTED]?
A. At that stage yes."
That was an extremely frank answer which I think caught even the Offender's solicitor by surprise.
The Court was assisted by details and helpful written submissions on behalf of both parties. I do not intend to repeat them. There is substantial agreement between the parties as to a number of essential matters necessary to determine the appropriate sentence. Although there was a bit of toing and froing about the objective gravity, the defence ultimately accepted that the offending in relation to the matters the subject of the six counts on the indictment fell at or about the mid-range. I think there was some discussion of it falling at the low end of mid-range, and the pedantic nature of any such finding, to the extent that any such finding is necessary, I find that it is within the mid‑range and at the lower end of that range. Relevant to that finding is the age disparity between the Offender and his victim, being a period on average of about 25 years, the sexual exploitation of the victim's youth, which is the very nature of the charge to which he has pleaded guilty, and the nature of the individual acts engaged in by the Offender.
The Crown referred to Court to a decision of the New South Wales Court of Criminal Appeal, the matter of Ivimy v R [2008] NSWCCA 25 where Price J, with McClellan CJ at CL and Hall J agreeing, described the touching of an eight year old girl on the outside of her vagina whilst she was standing naked in the shower as "close to a worst class of case". My recollection is that that matter also involved considerations which would distinguish it from the present case such as the fact that the offending was overall more serious. There were prior similar offending and there were threats made by the Offender to his victim.
In relation to Count 1, that count was in the home of the victim, Counts 2 and 4 were in a motor vehicle. Counts 3 and count 5 were in the Offender's home, and in respect of at least one of those occasions, the Offender's sister was in the bedroom.
In relation to Count 1, I find that it falls in the mid-range of objective gravity, noting the aggravating feature of it being an offence committed in the home of the victim, a place where he is entitled to feel safe. That was plainly betrayed by the Offender, who was exercising a role of control and authority over him.
In relation to Count 2, the victim was in the motor vehicle of the Offender when the Offender touched the victim's penis on the outside of his clothing, whilst driving. I find that offending falls in the low end of the mid-range of offending for this type.
In relation to Count 3, on this occasion the Offender was kneeling by the side of the bed when the victim was sharing a room with his sister. I understand that to have occurred in the home of the Offender, so as not to enliven the aggravating factor of home of victim, however a question arises as to the sister's presence. I have given consideration to that fact so far as it relates to the one count in which the sister was present. Whilst the section refers to the offence being committed in the presence of a child pursuant to s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 NSW, it is a little unclear as to how the Court is to apply that section as I note that the section has previously been considered as being principally aimed at the deleterious effect that the commission of the crime, particularly one of violence might have on the emotional wellbeing of a child, the commission of the offence may also be deleterious to the child's moral values. I note the decision of Howie J at para 104 in the matter of Gore v R (2010) 208 A Crim R 353.
I also note the decision of McLaughlin v R [2013] NSWCCA 152, where the generalised presence of a child is not sufficient to constitute an aggravating factor under the section. The Court held that it was an error for the sentencing judge to find two domestic assault offences were aggravated pursuant to the section, where the judge made no findings that the child was actually present or witnessed the offences. This suggests that such a finding can only be made when the child is present and or witnessed the offences.
Whilst it seems to be the case in respect of Count 3 that the victim's sister was in the same room as him, she appears to have been asleep and did not witness what occurred. Having regard to those circumstances, I decline to find it an aggravating factor, and my recollection is the Crown did not press that as an aggravating factor in any event. Having regard to count 3, I find that it falls at about the mid-range of objective seriousness for offending of this type.
In relation to Count 4, fondling the victim's penis over his clothing in a motor vehicle, relevant to that offending is the age disparity between the Offender and the victim. This is particularly in relation to the age of the victim relative to the age stated in the offence provision, that being ten years, together with the fact that the victim was trapped in a vehicle and was unable to escape. I consider that the offending over the clothing of the victim again falls at mid-range, but towards the bottom of the mid-range.
In relation to Count 5, being the act of indecency, I find that falls in the mid-range of objective seriousness, given the age disparity between the Offender and the victim and the young age of the victim, without double counting given that it is an element of the offence, and the fact that the incident caused the victim distress and caused him to ask the Offender to stop, which he did not.
Sequence 4, which attaches to Count 2 on the Form 1, was the occasion when the victim was sleeping, and was awoken by feeling the Offender's hand on his bottom. The Offender fondled the victim's penis and groin area. Again, for reasons of age disparity and the harm that would have caused to the victim, I find that to fall at the mid-range of objective seriousness.
In coming to those findings, I have had regard to the objective statutory aggravating and mitigating factors as they apply in this case. I have already discussed 21A(2)(ea), and decline to making a finding that the presence of the victim's sister was an aggravating factor.
In relation to Count 1 I have found, and this is reflected in the objective seriousness finding, the offending occurred in the home of the victim.
In relation to all the offending, I find the injury and emotional harm, loss or damage suffered by the offence was substantial, as is reflected by the victim impact statement.
In relation to the five counts involving the victim, I also find that the Offender abused a position of trust or authority in relation to the victim.
Further, and as a result of the questions asked in re‑examination and the honest answers given by the Offender, I find the offending involved a degree of planning which acted to aggravate the offending.
In terms of any mitigating factors, I find that the Offender does not have any significant record of previous convictions, or at least certainly nothing of this nature. I find the Offender was a person of good character. I find the Offender is unlikely to reoffend.
In relation to the offences involving the direct abuse of the victim, I accept and so find that the Offender has good prospects of rehabilitation in relation to those offences.
In relation to the child abuse material offence my view is guarded as to both likelihood of reoffending and prospects of rehabilitation.
I also find the Offender has demonstrated genuine remorse within the statutory sense, in that he has accepted responsibility and acknowledged the harm done by his offending.
I have had regard to the plea of guilty by the Offender and I have also taken into account the fact the Offender reported these crimes himself to the police by reason of the self-report to the hospital staff, enlivening s 23 of the Crimes (Sentencing Procedure) Act.
I can indicate that the sentence to be imposed is not a lesser penalty which is unreasonably disproportionate to the nature and the circumstances of the offending.
I indicate to the Offender, and make a record of the fact, that I have imposed the lesser penalty than I would otherwise have done given his cooperation with authorities and his cooperation in the sentence hearing. Overall, in my approach to sentencing I have adopted a discount of 10% by reason of the assistance provided by the Offender in disclosing his crimes to the police and being frank with the Court, together with entering a plea at the earliest opportunity. In addition he will receive a 25% which will be expressed in terms on sentence for his guilty plea.
Were it not for the fact that the Offender reported his own offending to the police he would most likely not be in custody now, as the family of the victim were aware of the offending some time ago and for whatever reason chose not to report the matter to the police. I expect that was probably to avoid the child enduring the hardship of participating in what may possibly have been a contested criminal trial. In any event, it is a matter which entitles the Offender to a discount on sentence.
In relation to the child abuse material offence, I am mindful of the Court of Criminal Appeal's remarks in the matter of R v De Leeuw [2015] NSWCCA 183, where at paragraph 72 the Court set out a number of principles relating to sentencing for child pornography offences. Unless exceptional circumstances exist, a sentence resulting in an immediate term of imprisonment is ordinarily warranted. I do not understand that to be disputed by anybody in this matter, and the objective seriousness of the offending is ordinarily determined by reference to the following factors:
1. the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
2. the number of items or images possessed;
3. whether the material is for the purpose of sale or further distribution;
4. whether the Offender will profit from the offence;
5. in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and
6. the length of time for which the pornographic material was possessed.
In relation to those matters, some of the material in the possession of the Offender was quite graphic, both in terms of the age of the children and the gravity of the sexual activity depicted.
Whilst the number of items or images possessed by the Offender compared to the other cases was not particularly large, the nature of the material itself would justify a finding of objective seriousness in the mid-range.
As to the other matters referred to by the Court of Criminal Appeal, there is no suggestion that the Offender was involved in the sale or distribution of the material, or that he would profit from the offence. That is apparent from his evidence, which I accept, that the material was discovered almost accidentally by the Offender but then used by him for sexual gratification. I find in relation to that offending it falls at the mid-range of objective gravity.
Returning to the submissions by the parties, the Crown submissions MFI 1 then go on at page 6 to refer to aggravating factors, which I have dealt with, together with mitigating factors. The mitigating factor in relation to 21A(3)(g) of the Act was ultimately not pressed by the Crown. I see that the Crown, at page 10 of the written submissions, engaged in the discussion about s 23(3) of the Crimes (Sentencing Procedure) Act 1999, in terms consistent with the findings previously made.
The question of delay also arises in this case, given the period of time which elapsed between the victim offending and the charge. The delay was not occasioned, however, by any delay on the part of the prosecuting authorities or by the police. The delay occurred because the victim and his family chose not to report the offending, which may be understandable, and also because the Offender did not himself report the offending, which again may be understandable. But where there is delay the Court is entitled to take that into account and adopt a cautious approach to sentencing. Considerations of fairness to the Offender will not require necessarily great leniency, but delay in sentencing is a relevant consideration. This is not a case where the delay was due to the Offender's conduct such as flight or absconding while on bail, and nor is it as a result of the conduct of any other person.
The Crown referred the Court to a decision of the New South Wales Court of Criminal Appeal in the matter of R v Cattell [2019] NSWCCA 297, where Price J, on behalf of the Court, identified an error of principle in the way the sentencing judge dealt with delay. Price J noted, at [136]:
"…the judge appears to have overlooked the reasons for the delay in the complaints and the benefits the respondent enjoyed in escaping punishment for the serious crimes that he committed many years before".
Whilst The Offender has enjoyed his liberty during the period elapsed between the offending and the sentence, it is plain from his evidence that, in more recent years, it has weighed quite heavily upon him.
Helpful written submissions were made on behalf of the Offender. As I said at the outset, there is a lot of consistency between the submissions advanced on behalf of the Crown and that of the Offender. It was accepted on behalf of the Offender that a lot of the offending fell at about mid-range of objective seriousness, and I have already made specific findings to those matters.
Whilst it was submitted on behalf of the Offender that the offence was not part of a planned or organised activity, and that that was a mitigating factor, that submission was not pressed in light of the evidence given by the Offender.
I think the only area that I have not touched upon in any detail so far is the prospects of rehabilitation, which on behalf of the Offender is addressed commencing at page 6 of the written outline. Referring back to the psychologist's report, the Offender has expressed a willingness to accept responsibility for his offending and engage in programs which would reduce the risk of offending, both in terms of the crimes involving the related victim, and the crime involving the child abuse material. It may be that with proper motivation he is capable of a full rehabilitation. In respect of the child abuse material, the Court's view is, as I have previously said, guarded.
I am mindful of the purposes for sentencing which the defence have drawn my attention to at page 7 of the submissions. That is to ensure adequate punishment. I am satisfied the sentence to be imposed upon the Offender will achieve that outcome to provide for general and specific deterrence. Cases like this always require a sentence which provides general deterrence. Specific deterrence can vary on a case by case basis, and in light of my findings concerning the risk of reoffending, the need for specific deterrence is perhaps less than in other cases. Protection of the community from the Offender is often a relevant consideration in cases such as these. Given my finding concerning the risk of reoffending, I am not satisfied that the Offender poses a great risk to the community.
Rehabilitation is also a matter which the Court strives to achieve on behalf of the Offender. Again, the sentence to be imposed will aim to achieve that outcome.
Accountability, denunciation and recognition of the harm to the victim are the other matters to which the Court has regard in sentencing an Offender. I have taken those considerations into account in this sentence.
It was submitted by the Crown and conceded by the defence that, after considering all possible alternatives, there was no penalty other than full-time custodial imprisonment which was appropriate in the circumstances. I make that finding.
As further submitted on behalf of the Offender that special circumstances ought to be found on the following basis:
1. first time in custody;
2. the need for accumulation of sentences;
3. the fact that the prosecution resulted from the Offender's self‑disclosure;
4. the prospects of rehabilitation would be assisted by a long with a usual period on parole;
As to matter 3, I have already made specific findings in relation to the self‑disclosure. Regarding matter 2 two, taking into account his special circumstance in my view would be double counting that matter.
In any event I otherwise accept the submissions advanced on behalf of the Offender in respect of special circumstances, which I find.
Section 25AA(1) of the Crimes (Sentencing Procedure) Act requires the Court in matters such as this to have regard to current sentencing trends and patterns in sentencing Offenders for historical sex offences. In this case, that principle is also recognised by the fact that since the offending occurred, the maximum sentences for the subject offences have increased, demonstrating Parliament's intention to the community and to regard offending of this type as more serious. The maximum sentence of course provides a guidepost as to the seriousness of the offending.
In coming to the sentence I have adopted the approach required by s 25AA, in that I have adopted the sentencing patterns and practices at the time of sentencing, that is today, and not at the time of the offence some 20 years ago.
I have also had regard to cl 25AA(3) "to the trauma of sexual abuse on children as understood at the time of sentencing". As I observed during the course of referring to the Victim Impact Statement, a lot of the problems being suffered by the victim are entirely consistent with what is now known to be the sorts of problems suffered by the victims of child sexual abuse.
The Offender, what I am about to do is to convict you in relation to the various charges, and then I will impose an aggregate sentence in relation to the charges before providing an aggregate sentences. However, I must provide you with indicative sentences in relation to each of the six charges, just so that you understand what the sentence would have been had an aggregate sentence not been imposed. Commencing the convictions:
You are convicted of indecent assault where the victim is under the age of ten years, in breach of s 61M(2) of the Crimes Act 1900.
You are further convicted of the same offence, indecent assault where the victims is under the age of ten, in breach of s 61M(2).
You are further convicted of the same offence, that is, indecent assault, where the victim under the age of ten, in breach of s 61M(2).
You are further convicted of committing an act of indecency with a victim under the age of ten, in breach of s 61O(2) of the Crimes Act.
Finally, you are convicted of possessing child abuse material, in breach of s 91A(2) of the Crimes Act.
Before announcing the aggregate sentence, I will first announce the indicative sentences, which are after discount, both for the guilty plea and for the s 23 assistance provided by the Offender.
In relation to count 1, I provide an indicative sentence of 2 years and 3 months.
In relation to count 2, I provide an indicative sentence of 1 year and 10 months and 15 days.
In respect of count 3, I impose an indicative sentence of 1 year and 6 months.
In respect of count 4, I find an indicative sentence of 1 year and 6 months.
In respect of count 5, I find an indicative sentence of 1 year and 4 months.
Finally, in respect of count 6, I find an indicative sentence of 1 year, 10 months and 15 days.
The aggregate sentence which I impose upon you consists of a head sentence of 6 years commencing 21 March 2019, with a non‑parole period of 4 years. You will be eligible for parole on 20 March 2023.
Sir, just so you understand the sentence, it is basically a head sentence, aggregating all of the offending, of 6 years which will run from 21 March 2019 and expire on 20 March 2025 and a non-parole period of 4 years commencing 20 March 2019, expiring on 20 March 2023 at which time you will be eligible for parole.
I am required to give you a warning under the Crimes (High‑Risk Offenders) Act 2006. This applies to particular classes of Offenders in respect of particular types of offending. In your case it applies to serious sex offence as defined in s 5 of the Act.
Pursuant to pt 1A of the Act, the Supreme Court has power to make an order for your supervision in the community after you are discharged on parole, which would be referred to as an extended supervision order in certain circumstances which I need not trouble you with today. However, it has to do with the level of risk which you pose at the time you become eligible for parole.
Similarly, pursuant to the same Part and the same Act, the Court has the power to make a continuing detention order if you pose an unacceptable risk to the community.
The Court may order your continued detention if there is a high probability that you pose an unacceptable risk of committing another serious offence if not kept in detention. I am not saying to you that will happen, I am just required to give you that warning as a matter of law.
[2]
NOTE:
A. These remarks on sentence were revised without access to the Court File.
I certify that the previous 122 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.
Associate
James Bailey
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Decision last updated: 22 May 2020