R v McTiernan (a pseudonym)

Category: Sentence

Parties: Director of Public Prosecutions (Crown)
McTiernan (a pseudonym) (Offender)

Representation: Counsel:
Mr J Sfinas for the Crown
Ms S Carr for the Offender
Solicitors:
Director of Public Prosecutions for the Crown
Legal Aid Commission for the Offender

File Number(s): 2014/00158103

Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter that identifies the complainants or any matter which is likely to lead to the identification is prohibited.

JUDGMENT

Introduction

1. The offender is to be sentenced in respect of 2 charges under section 66EA of the Crimes Act 1900 to which he has pleaded guilty. The matter did not proceed by way of presenting an indictment but instead by the production of the charge certificate. The charges have the same “H” number, 56991584 and each has a separate sequence number and are sequences 3 and 4. Sequence 4 occurred first in time in the period 1971 to 1980 and sequence 3 occurred in the period 1981 to 1983. The dates are relevant because a consideration in determining the sentence in this case is the fact that for offending of a similar nature that occurred in South Australia the offender was incarcerated for a period of 12 years from 2012 to 2024. It is accepted by the parties that it is open to infer that the SA offending commenced between March and July 1983, and concluded by July 1993. The victim of the SA offending was A. What requires consideration are the principles of proportionality and totality. The offender has remained in custody following his arrest by New South Wales authorities on 28 March 2024 to date and has therefore spent 14 years in prison but with only approximately 2 years attributable to the current matters.

2. The maximum sentence for each of the 66EA matters is life imprisonment. There is no standard non parole period. I take the maximum sentence into account as a legislative guidepost indicating the legislature’s view of the seriousness of the offence so as to assist in arriving at the appropriate sentence.

3. There are no matters to be taken into account by way of the Form 1 procedure.

The facts

4. The following summary of the facts is taken from the statement of agreed facts which form part of the Crown bundle which became exhibit A. The facts of sequence 4 will be dealt with first as they occur first in time.

5. The offender was born on 22 February 1947. On 6 February 1971 the defendant married his first wife who was the mother of the victim of sequence 4 who I will refer to as E in these reasons. E was born on 21 September 1966 and so was 4 years old at the time of her mother’s marriage to the offender. Upon being married to E’s mother the offender adopted E.

6. On 25 February 1977 P, the victim of sequence 3 was born. In April 1977 P was adopted by the offender and his first wife.

7. In about 1980 the relationship of the offender with his first wife ended. To this point all parties had resided in Sydney. Following the end of the relationship E did not participate in any visits to the offender. P, who at this stage was approximately 3 years old, initially had short unsupervised visits roughly every second weekend for a few hours with the offender. Over time the visits were extended to be fortnightly for the weekend.

8. In March 1983 the offender moved to South Australia and lost touch with both victims. On 14 December 1991 P, then aged 14, moved to South Australia to live with the offender. In early 1992 P made disclosure to her school and then the police. E was then contacted and disclosed that she had been sexually abused by the offender.

9. P gave a statement to police and went into foster care. The offender was interviewed by the South Australian equivalent of the Department of Family and Community Services and denied the allegations. P subsequently moved back to Sydney in September 1992. A gave a statement to police, I infer at about that time as to what the offender had done to her in SA.

10. The offence created by section 66EA is maintaining an unlawful relationship with a child. The section defines an unlawful relationship as one “in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period”. The section defines an adult as a person above the age of 18 and a child as a person under the age of 16. An unlawful sexual act is defined to include a range of sexual offences including sexual intercourse without consent and sexual intercourse with a child under the age of 10, and sexual intercourse with a child between the ages of 10 and 16, with the latter 2 examples not having the element of a lack of consent, and also the offence of sexual touching or as it was more commonly referred to at the time of these offences, indecent assault.

Sequence 4: offending against E.

11. The agreed facts are that the unlawful sexual relationship with E was maintained between 1971 and 1980 when E was aged between 5 and 14 years of age.

12. The structure of the facts is to set out five unlawful sexual acts and to then identify a range of occasions on which those acts occurred which I infer are not intended to be exhaustive. I draw that inference based on the facts referring to there being “frequent occasions” on which the unlawful sexual act in question occurred; see for example paragraph 17.

13. Without in any way intending to minimalise the offending conduct the facts can be adequately stated by reference to the unlawful sexual act and the examples given. So the first unlawful sexual act relied on is the act of touching the victims clitoris, it is not expressly stated as to whether this is intended as an occasion of indecent assault or sexual intercourse. The Court invited the parties to indicate what offence the conduct constitutes. The parties helpfully replied with a table (“the table”) stating the agreed position to be indecent assault at the time of the offending, and sexual touching presently. Given the agreed fact and the location of the clitoris, it is difficult to see how this does not satisfy the present definition of sexual intercourse. The point of the table is to show the present penalty for the present equivalent offence; eg indecent assault is now sexual touching though the table does not show that the indecent assault eg EU1, would now be charged as sexual intercourse. This unlawful sexual act occurred in the victim’s bedroom at night when aged about 5 or 6 years old. It is said to have occurred frequently at that time. It also occurred frequently when the victim was about 8 years old. It happened again when she was 9 years old. It happened fairly brazenly on one occasion at a barbecue when the victim was wearing her swimsuit when the offender called E into the house and took her into the bedroom and shut the door.

14. The second unlawful sexual act is cunnilingus. This occurred when the child was about nine years old. The first time it happened was when the victim was watching television. He was masturbating with one hand and with his other hand between the victim’s thighs he rubbed her clitoris, he asked her to, and she did, grab his penis and he then moved her hands up and down along his penis. He then continued masturbating to ejaculation and then knelt down in front of the victim to perform cunnilingus and did so.

15. Cunnilingus was also performed in the cubby house of the backyard with the child sitting on a counter forming part of the cubby house

16. The third unlawful sexual act is masturbating in front of the victim. One occasion of that occurring has just been outlined. On that same occasion occurred the fourth category of unlawful sexual act namely inciting the victim to masturbate his penis.

17. The fifth category of unlawful sexual act is attempting to insert his penis inside the victim’s vagina. This is the last of the matters referred to in the facts and so would appear to have been at the very end of the date range and at a time when the victim was the oldest at any time of the offending. That is when she was approaching 14 in about 1980. On this occasion the offender had called E into the bedroom where they were visiting in Melbourne and got her to lie on the bed. Her feet were hanging off the bed and he stood in front of her facing her and removed her underpants. He pulled his trousers and underpants down to his ankles exposing his erect penis. The offender opened the victim’s legs, lent over her body and while holding his penis lowered himself and pushed his penis against her vagina. This caused pain and she asked him to stop. He pushed his penis against her vagina again, causing the victim to ask him to stop. He then stood up and moved away and the victim put her underpants back on and left the bedroom.

18. The facts also set out events preceding the offending which the Crown relies on to show “habitualisation”, and no argument is put against this. This conduct included having the victim remove the offender’s penis from his pants so he could urinate, and also included the offender kneeling on the bathroom floor and watch the victim urinate. The offender told the victim not to tell her mother as the mother would get jealous.

Sequence 3: offending against P.

19. The unlawful sexual relationship began in 1981 when P was about 4 years of age and the offender about 34 years of age.

20. The agreed facts for this offence identify 4 unlawful sexual acts. The first is cunnilingus. One occasion described involves the offender as showing a pornographic magazine showing heterosexual intercourse and men ejaculating on women. He then placed his hands on her knees and moved her legs apart and began kissing her legs and her thighs and then performed cunnilingus. This was all done when P had entered the bathroom for the purpose of having a bath. After abusing P the offender then bathed P. The allegation which is accepted is that this occurred whenever she would stay with him which was approximately fortnightly for a period between 1981 (and not 1980 as stated in the agreed facts at paragraph 34) and 1983.

21. The second unlawful sexual act is rubbing his penis against the victims of vagina. This he would do on some of the occasions that he had performed cunnilingus. He would rub his erect penis on the outside of her vagina until he ejaculated on her legs and then bath her to clean her.

22. On occasions he would say words to the effect of not to tell anyone because they might get in trouble.

23. The third unlawful sexual act is to incite P to spread her legs while naked and take photographs of her. On one occasion he asked P to lie on the floor and open her legs, stood approximately 2 m from her and started taking a number of photographs of P lying naked. This occurred on a number of occasions. The fourth unlawful sexual act is of inciting P to hold a bottle against her vagina and take photographs of P. This is said to have occurred on some of the occasions that the photographs had been taken.

Objective seriousness; sequences 3 & 4

24. Both parties have made helpful submissions concerning the assessment of objective seriousness. The offender accepts the description of the offending outlined in the Crown’s submissions which at [26] is to describe them as very grave examples of section 66EA offences. The Crown makes the point that this was a gross breach of trust and an abuse of authority. Both the victims were very young and therefore particularly vulnerable. In respect of E the offending was over a period of 9 years and in respect of P it was over a period of 3 years.

25. The Crown notes an aggravating feature concerning E that the offending occurred in her home; in my view much the same can be said in respect of P who was abused at a time she was spending time with her adoptive father and has just as much entitlement to feel as safe in that environment as if it was her own home.

26. The Crown referred to Burr v R [2020] NSWCCA 282 at [106]. The passage quoted refers to the minimum number of ingredient offences to be 3 and the present legislation is that it be 2 or more. Nothing turns on this in this case for whether it be 2 or 3 the number of offences that have in fact been committed far exceeds 2 or three. In relation to E six specific occasions are recounted in which a total of seven offences occurred and there is then the general reference to the offending occurring frequently, both at the time they lived in Villawood when E was 5 or 6 and also frequently when they had moved to Seven Hills when the E was about 8. With P, the offending was fortnightly for 3 years.

27. In assessing the objective seriousness of these two offences the range of conduct and the number of occasions on which this conduct occurred shows it to be very serious. It is clear from the facts concerning E that rubbing the victims clitoris occurred frequently as that is expressly stated. The facts show 2 occasions of cunnilingus with E, but it does not expressly state that that occurred frequently. There is only one occasion in the facts of an attempt at penile vaginal intercourse with E and the language does not suggest that occurred frequently either. Only 2 occasions of masturbation are referred to. That said, the offender accepts the facts allow for a finding, which I make, that the unlawful sexual acts particularised occurred on far more occasions than those particularised in each case. I find they occurred throughout the periods of the unlawful sexual relationships.

28. There has been no challenge at all by the offender to the agreed facts and it is accepted this it is a very serious example of this offence.

29. Overall, the nature of the sexual offences varies; there are occasions of touching the clitoris; on other occasions there was assisted masturbation, cunnilingus, and attempted penile vaginal intercourse. In both cases there were times where the conduct resulted in ejaculation.

30. The ages of the victims adds to the seriousness of the offences. In the case of E it commenced when she was approximately 5 years old and ended when she was approximately 14. With P the offending commenced when she was 4 and ended when she was 6 or 7. Both E and P were well under 16 when the offending commenced.

31. The age of the offender at the time of the offending was 24 through 36 with the offending affecting P occurring in the last 3 years of that range. That the offender was the adoptive father of the victims (and stepfather to E, though nothing is added by this) with the noted breach of trust and occurring in the home of E and the offender’s home with P, a place she is entitled to feel safe, adds to the seriousness of the offences.

32. In my assessment the above considerations result in a finding that the objective seriousness of sequences 3 and 4 is past the midpoint. The duration of the unlawful sexual relationship and the wide-ranging nature and severity and gravity of its ingredient offences together with the offending occurring in breach of a relationship of trust dictates that result.

33. One point of difference between sequence 4 and sequence 3 Is that the offending was for a significantly shorter period of time in respect of sequence 3. That said it still extended for a period of some 3 years.

34. I note the offending constituting sequence 3 in effect follows on from the offending of sequence 4. With P the first thing that occurs is cunnilingus as opposed to a sexual touching, and there was no “habitualisation” as with E. The offending affecting P on the facts more frequently results in ejaculation at a time of rubbing the penis around the genital area of the child which I consider to be more serious conduct than masturbating himself whilst touching as was the case with E.

35. That the offending against P was of a duration significantly less than it was as against E is plainly a matter that lessens its comparable seriousness as an unlawful sexual relationship. At the same time there are differences as to the actual facts of the offending which in my view but for the duration distinction adds a degree of seriousness to sequence 3 that is not on all fours with that of sequence 4.

36. Taking these matters into consideration I do not consider it is simply a matter of saying both offences are of an equal level of objective seriousness. They are however perhaps closer in seriousness than may otherwise have been considered the case for the reasons just outlined. I would assess sequence 4 where E is the victim as more objectively serious than sequence 3, and would assess it as being above the mid point in the objective seriousness. Sequence 3 is also above the mid point, but less objectively serious than sequence 4. To attempt some greater precision, I assess sequence 3 as being towards the top of the middle 20% and sequence 4 as towards the top of the middle 40% on a range of objective seriousness.

37. The Crown did not make any submission concerning any aggravating factors beyond the breach of trust and that regarding E the offending happened in her home. The offender recognised the aggravating feature of the offending occurring in the home of the victim. The offender did not make a distinction between sequence 3 will sequence 4 in that regard and in my view sensibly so given my comments above. These are matters that have been taken into account in assessing the objective seriousness and will not be treated as aggravating factors as there should be no double counting.

Victim impact statement

38. The court was provided with a victim impact statement of P; there was no victim impact statement of E. P’s statement talks of how she turned to drugs and prostitution, and attempted suicide 3 times whilst living on the streets and in refuges. P suffers panic attacks and anxiety and is receiving counselling intermittently. P makes the sad but undoubtedly true assessment that the enjoyment of her life has been limited due to the offender’s conduct.

Subjective case

39. As already noted an issue in this case is how to deal with the fact that the offender has spent 12 years in custody for the South Australian offences which he committed in the period 1983 - 1993. The nature of that offending will be considered below. First however the offender’s subjective case otherwise will be considered and thereafter consideration will be given to the issues of delay, totality and proportionality.

40. The offender is now 79 years old. The last occasion he committed any offence was in connection with the South Australian matter. Relying on the amended chronology of the Crown which was marked exhibit B although should probably be an aide memoire, and which was not objected to the last offence was in the period July 1990 to July 1993. In other words there had been no offending in the 20 years between the last of the offences and his sentence for the SA offences. The sentence remarks of 2012 and a detention application, both in the materials before the court, show that the offender had remained in the community until his sentence in 2012. As to the SA offences it is convenient to note here that there were 10 offences committed over 8 years, on one victim, A, aged 5 to 13. There were also uncharged acts the Court found established. The first offences were of touching A’s genitals, and of the offender having A touch his genitals. This occurred whilst the offender was babysitting A. The offender told A it was their special secret. Fellatio and cunnilingus were counts 3 and 4. Count 5 was fellatio, count 6 was the offender touching A’s genitals, counts 7 and 8 were digital penetration of the vagina and anus of A respectively, count 9 was another occasion of fellatio, and count 10 was indecent assault. The offending came to an end when A did not perform fellatio as asked by the offender, and also when asked told him she had a boyfriend.

41. The offender did not tender any report of a psychologist in his case though there was a Sentencing Assessment Report prepared by NSW Corrective Services dated 17 November 2025 as well as a structured case note of NSW Corrective Services of the same date, and an updated Sentencing Assessment Report dated 11 February 2026.

42. From the first sentencing assessment report I note that the offender retains the support of his wife and continues to have a relationship with his son. There is no contact between the offender and E or P. The offender had a consistent work history which commenced by serving in the Australian Navy. The offender worked in various positions after leaving the Navy. He worked until incarcerated in 2012.

43. He has no criminal record outside of these serious criminal offences, including the SA matter. There are no mental health or substance abuse issues reported. The offender justified his behaviour in sexual contact with children as stemming from a perceived sense of emotional closeness to the child. At the same time he denies recalling the circumstances surrounding the offending.

44. Whilst incarcerated in South Australia he completed a 4 month sexual behaviour clinic which he described as enlightening and transformative. He acknowledged the victims included family members and characterised his actions as disgusting and expressed regret. He reported increased empathy for the victims and said the offending would not be repeated. He hopes that his conviction and sentencing will allow the victim some closure, noting that one victim (P) had made a formal complaint over 30 years ago.

45. He states he will engage in treatment and programs as required.

46. He desires to return to South Australia and I note that his wife, who supports him, remains in SA in ill health with limited social support.

47. The report assesses him as a low risk of reoffending though that assessment was overridden by community corrections to Tier 3 / low due to completed sex offender risk assessments.

48. The update report seems to seek to detract from the positives in the first report as to his expressions of empathy by saying he demonstrated a limited understanding of the impact on his victims and that he minimised the impact of the offending. It says he identifies as a pedophile during the period of the offending but denies that he has a current interest in children sexually.

49. The update report notes that he demonstrated some cognitive distortions by attributing the behaviour to an obsession with the female orgasm and a lack of understanding of female sexual functioning. The report notes his confidence not to reoffend then refers to the offender making references to neuroplasticity in explaining why he will not offend, and says that his insight remains superficial. It also notes that the offender rationalised aspects of the offending by making reference to marital dissatisfaction and low sexual intimacy with his first wife. Given the marriage ended in 1980, there is no exploration of why the offending continued for a further 3 years (or 13 if the SA offending is included); it suggests a lack of acknowledgement of wrongdoing. It also notes his current wife does not believe he committed the offences. The report states that the offender has not disclosed the truth to her and it is said this suggests issues with honesty and also hinders her capacity to implement appropriate protective measures if there was access to children.

50. The purpose of the case note is stated to be to provide an assessment regarding Mr Newton’s suitability for and access to sex offender programmes within Corrective Services NSW and to comment on risk considerations. It is expressly stated to not be a comprehensive risk assessment.

51. The report neatly summarises essential matters of the offenders background, already noted above, but including his age, longterm current wife (since 1980) who is supportive, good work history, and no history of mental health issues, other than anxiety for his wife who needs support. The report refers to the offender having a prior history of sex offences ; it may be nothing turns on this, but the NSW offences now being dealt with occurred before the SA offences.

52. The risk assessment (not comprehensive) used the Static 99 test. Based on that test the assessment is “very low’. The report states that the risk assessment process involves considering dynamic factors, and that has not occurred. The assessment is therefore not comprehensive, and so far as the “static” testing goes, shows a very low risk of re offending. That was said to be 0.26 times lower than the rate of sexual recidivism of sex offenders with the “routine” normative samples. A difficulty here is the report does not state what rate of recidivism applies to these “routine” samples.

53. The recommendations are not clearly expressed. They are that, due to the offender’s very low risk of reoffending, he is not eligible for sex offender programmes offered by Corrective Services, without it being made clear if that is a reference to being in custody or not. It then says if he is in custody he would be assessed for programmes suitable to managing his risk of reoffending. Inferentially, that must be programmes other than sex offender programmes. On any view, he is not assured to be part of sex offender programmes if he is in custody because of this very low risk of sexual offending, based on the static testing.

54. A note from the SA Sentencing Management Unit (SMU) dated 12 June 2012 was in evidence. It is similar to the NSW case note just referred to. By reference to static factors the offender was found at that time to be a low risk of sexual reoffending. It should be noted that the offender did not proceed with the risk assessment as he had an appeal pending. A second note from the SA SMU dated 19 November 2012 is to the same effect. It appears that a static test was possible, but nothing beyond that such as a dynamic test.

55. The parties handed up a document which became tab 13 of exhibit A, being a record of the Parole Board of SA. It shows that the offender applied for parole on 1 October 2018 (the non parole period expired on 1 April 2018), that there followed an assessment and a parole report, and an interview of the offender. Consideration of the application was deferred pending the offender completing a Sexual Behaviour Clinic. Whether that happened is not clear. The matter was further deferred on a number of occasions. On 10 September 2021 the application for parole was formally withdrawn.

56. The point the offender makes from this is that the reason the offender was not paroled was, it was submitted, not because he was determined to be unsafe. The Crown position seemed to be to go as far as to say the NSW offences are separate matters, and whether the offender had spent 6 years or 12 in custody for the SA matters is of little significance.

Consideration

57. It is accepted by the offender that objectively the facts show a very serious case of very serious offending, against 2 children, a concession sensibly made and consistent with the assessment set out above.

58. The purposes of sentencing are set out in section 3A of the Crimes (Sentencing Procedure) Act 1999. They are:

(a) To ensure the offender is adequately punished; (b) To prevent crime by deterring the offender and others from committing similar offences ; (c) To protect the community from the offender; (d) To promote the rehabilitation of the offender; (e) To make the offender accountable for his actions; (f) To denounce the conduct of the offender; (g) To recognise the harm done to the victim of the crime and the community.

59. In cases of child sexual abuse the need to protect children and to deter others from so acting assume “particular significance”; see R v ABS [2005] NSWCCA 255 per Buddin J at [26]. The offender helpfully made reference to EG v R [2015] NSWCCA in which it was said at [42]:

General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.

60. No argument was made for the offender for there to be a finding of lesser moral culpability; for example no submission was made as to his background being one of disadvantage; his life has been free of any significant trauma, and there was nothing said about his mental health beyond some decline consistent with his age.

61. Favourably to him I find his risk of reoffending to be low. That may lessen any emphasis on specific deterrence, but there remains the need for the sentence to emphasise general deterrence, denunciation, for the offender to be held accountable, and also to recognise the harm done to the victims.

62. I also note the matters above suggesting his lack of insight, and his failure to be frank with his wife about his offending. The updated SAR refers to rationalisations as to the causes of the offending; an unsatisfactory sex life and referring to neuroplasticity with no reference to any psychological or medical material to support that. That said, he unreservedly acknowledges the seriousness of his offending. Further the offender makes no argument favourable to him arising from the passing of time between the offending and sentence, or when he was first charged and sentenced other than to argue the sentence should be more lenient due to the passing of time since he was first charged in 2014 seeing an increase in the severity of the available charge. The offender also relies on R v Todd (1982) 2 NSWLR 517 and R v Obbens [2022] NSWCCA 109 discussed below, for a more lenient sentence due to the principles of totality and proportionality. The offender also argues s21B CSPA does not apply.

63. Due to the timing of his plea he is entitled to a 25% discount on his sentence. Some recognition of his remorse should be made, beyond that reflected by his plea, but not as much as may have been made without these reservations as to his insight.

64. The age of the offender at the time of sentence is a relevant matter. He is now 79, and has been in custody since he was 65, and wishes to spend time with his wife who is in need of support. Against that should be considered the lifetime of trauma that he has inflicted upon P and E.

65. There is reason to have concern as to the offender’s insight and attitudes, and the need for some rehabilitation needs to be considered. As to his prospects generally, given his age, the likelihood must be he will live out his life quietly and offence free with his wife.

66. All of these matters are taken into account, yet a number of significant issues need to be determined before the sentence can be determined.

Sections 21B and 25AA CSPA

67. Both parties made submissions concerning sections 21B and 25AA of the CSPA.

68. Section 21B is as follows:

21B Sentencing patterns and practices

(1) A court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing.

(2) However, the standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing.

(3) Despite subsection (1), a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if--

(a) the offence is not a child sexual offence, and

(b) the offender establishes that there are exceptional circumstances.

(4) When varying or substituting a sentence, a court must vary or substitute the sentence in accordance with the sentencing patterns and practices at the time of the original sentencing.

(5) This section does not affect section 19.

(6) In this section--

"child sexual offence" has the same meaning as in section 25AA.

69. Section 25AA provides:

25AA Sentencing for child sexual offences

(3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

(5) In this section--

"child sexual offence" means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years--

(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900 ,

(b) an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act,

(c) an offence of attempting to commit any offence referred to in paragraph (a) or (b),

(d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c).

70. There was a dispute between the parties as to whether these legislative provisions apply to these proceedings. There is agreement that s21B applies to proceedings commenced on or after 18 October 2022; the dispute is as to when the proceedings commenced. The offender says the proceedings commenced with the initiating process of the two CANs issued in 2014. The offender’s argument is that there are 4 court attendance notices, all with the same H number, and being sequences 1 to 4, and I would add all dated as created and accepted on 6 May 2014. The issue perhaps appears a little more opaque than it truly is, due to the fact that whilst all 4 CANs have the 2014 date, it is accepted that only two charges were laid in 2014, and in both of which P was the complainant; it is accepted that the two CANs relating to the s66EA matters, and with P a complainant in one and E the complainant in the other, only came into existence in 2024.

71. That there is room for argument perhaps is attributable to the use of the word “proceedings”; the offender’s argument relies on the initial CANs as being what commences the criminal proceedings against him. The language of the relevant legislation uses the word “proceedings”, and it may be this has influenced the argument. Yet that same legislation refers to “committal proceedings for an offence are to be commenced” (italics added) by the issue and filing of a CAN; see s47(1) of the Criminal Procedure Act (“CPA”).

72. The offender placed emphasis on the word “a”, ie the filing of “a” CAN. As I understood the argument, once “a” CAN has been issued and filed, then that is the commencement of the proceedings in respect of all that may follow, including the issuing and filing of further CANs relating to different offences. The argument is akin to an amendment to a civil statement of claim having effect from the date of the original filing, though I would note that general rule does not apply when there is the addition of a further cause of action; see s64 of the Civil Procedure Act, though s65 in turn provides for an exception.

73. It was said for the Crown that the initial 2014 CANs were only in respect of one complainant, and that the proceedings should be said to have commenced when the indictment was created or presented. On the Crown’s blunt approach, the H number is irrelevant. More precisely stated, and as noted in the Crown’s subsequent written submissions, the Crown argument is that the proceedings commence for the particular offence at the time the CAN for that particular offence is issued and filed. I would note this is clearly stated in s47 CPA, and not so clearly stated in s53 CPA, though plainly in language consistent with s47, and also for that matter in line with the language of s172. The argument is in line with the reasoning seen in DPP v Rokomaqisa [2025] NSWCCA 112, at [55] et seq.

74. I find the offender’s argument unpersuasive largely due to being at odds with reality, that is, there were no proceedings concerning s66EA before 2024. Further, the wording of s47 does not sit well with the offender’s argument. The section refers to proceedings “for an offence”. The short point is there were no proceedings in respect of the s66EA matters until 2024. That the relevant CANs on their face are said to have been issued in 2014 is I infer attributable to the administrative processes of managing the charges concerning the offender, and ordinarily would not raise any issue; in this case, with the 10 year delay due to the SA incarceration, the room for the argument arises.

75. The result then is the proceedings of the offences the subject of this sentence commenced in 2024 with the issuing and filing at that time of the CANs stating the s66EA charges. The consequence of that is that section 21B applies to these proceedings, and the court must sentence the offender in accordance with sentencing patterns and practices at the time of sentencing. Further, s25AA in its current form applies to this matter, so that the court must have regard to the trauma of sexual abuse on children as understood at the time of the offending. This was not contentious in any event in this case as the offender expressly accepted in his written submissions that the offending caused substantial long term harm to the victims, a matter expressly relevant by s3A(g) CSPA.

76. Whilst the sentence needs to be one arrived at in accordance with with present sentencing patterns and practices, it need also take into consideration s66EA(8), which provides as follows:

(8) A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.

77. Thus, whilst the sentence is in line with current sentencing practices, it is also to take into consideration the maximum penalty of the constituent unlawful sexual acts which make up the unlawful sexual relationship. In broad terms, those maximum penalties were less than they are today. The consequence of that must very frequently be that, whilst subsection 8 is just one of a range of matters to take into account, the sentence arrived at will be less for historical s66EA matters than a sentence arrived at based on current sentencing practices, and current maximum sentences. The table referred to earlier in these reasons, setting out the maximum sentences for the constituent unlawful sexual acts both as at the time of the offending, and presently by reference to the present comparable offence was helpfully provided by the parties. That table is as follows: (note that no maximum penalty is stated in respect of EU2; as at 1 January 1977 the maximum penalty for a s76 offence was 6 years):

| Unlawful Act per Agrd Facts | Description | Applicable offence provision at the time of offending | Maximum penalty for that offence at time of offending | **Per s 66***EA(**15) definition of ‘unlawful sexual act’ sub (c) – equivalent offence to sub (a) list of offences | Max penalty of equivalent offence today | | Sequence 4 – s 66EA, complainant: ES | | EU1 | The accused used his finger/s to touch the complainant's clitoris | Per the agreed facts, this offending occurred on multiple occasions between 1971 and 1980. Assault female & commit act of indecency age <16 yrs - S 76 Crimes Act 1900 Law part code 350 | 5 years (prior to 2 August 1974) 6 years (from 2 August 1974 – 1980) [The maximum penalty for this offence changed on 2 August 1974 from 5 years to 6 years.] | S 66DA Crimes Act – Sexual touching – child under 10 (1971 – 21 September 1976) S 66DB Crimes Act – Sexual touching – child between 10 and 16 (21 September 1976 – end of 1980) | 16 years (1971 – 21 September 1976) 10 years (21 September 1976 – end of 1980) | | EU2 | The accused performed cunnilingus on the complainant | Per the agreed facts, this offending occurred on multiple occasions between 1974 and 1980. Assault female & commit act of indecency age <16 yrs - S 76 Crimes Act 1900 Law part code 350 | | S 66A Crimes Act – Sexual intercourse with a child under 10 (1974 – 1976) – life imprisonment S 66C Crimes Act – Sexual intercourse with a child between 10 and 16 (1974 – 1980) – aggravated offence (under the authority of the offender) – 20 or 12 years depending on whether ES was under 14 at the time. | Life (for offending which occurred prior to 21 September 1976) 20 years (for offending which occurred 21 September 1976 -20 September 1980) 12 years for offending which occurred 21 September 1980 to the end of 1980 | | EU3 | The accused masturbated in the presence of the complainant | Per the agreed facts, this offending occurred on multiple occasions between 2 August 1974 and 1975 when ES was aged 8-9. Commit act of indecency on female, under 16 years S 76A Crimes Act 1900 Law part code 352 | 2 years (offence was introduced 2 August 1974) | S 66DC(a1) Crimes Act – Sexual act in the presence of child under the age of 10 | 7 years | | EU5 | The accused attempted to insert his penis inside the complainant's vagina | This offending occurred in Melbourne, Victoria at Christmas time, 1975 and involved the offender attempting to penetrate ES’s vagina with his penis on two occasions. The relevant Victorian criminal offence in force at the time was s 47 of the Crimes Act 1958 (Victoria) “Whosoever is convicted of any attempt or assault with intent unlawfully and carnally to know and abuse any girl under the age of ten years shall be liable to imprisonment for a term of not more than ten years”. If this offending had occurred in NSW, the applicable offence provision would be **Attempt to carnally know girl under the age of 10 years-SI - S 68 Crimes Act 1900 Law part code 337 with max penalty 14 years. | 10 years (Victoria) 14 years (NSW) | s 66B Crimes Act – Attempting to have sexual intercourse with a child under 10 (per s 66EA(15) definition of unlawful sexual act subparagraph (d)) - if committed in NSW today: | 25 years (NSW) | | Sequence 3 – s 66EA, complainant: PN | | PU1 | The accused performed cunnilingus on the complainant | Per the agreed facts, this act each occurred on multiple occasions between 1981 and March 1983, whenever PN would stay with the offender For offending which occurred before 14 July 1981 - Assault female & commit act of indecency age <16 yrs - S 76 Crimes Act 1900 Law part code 350 For offending which occurred between 14 July 1981 – March 1983 – s 61D(***1) – sexual intercourse without consent | For s 76 (prior to 14 July 1981) – 6 years For s 61D(1) (from 14 July 1981 onwards) – 10 years | S 66A Crimes Act – Sexual intercourse with a child under 10 | Life imprisonment | | PU2 | The accused rubbed his penis against the complainant's vagina | Per the agreed facts, this act each occurred on multiple occasions between 1981 and March 1983, whenever PN would stay with the offender Assault female & commit act of indecency age <16 yrs - S 76 Crimes Act 1900 Law part code 350 | 6 years | S 66DA(a) Crimes Act – Sexual touching – child under 10 | 16 years | | PU3 | The accused incited the complainant to spread her legs while naked and took photographs of her | Per the agreed facts, this act each occurred on multiple occasions between 1981 and March 1983, whenever PN would stay with the offender Sexual assault (Cat 4) incite indecent act person < 16 - S 61E(2) Crimes Act 1900 Law part code 267 | 2 years | S 66DC(b) Crimes Act – Incite child under 10 to carry out sexual act towards person | 7 years | | PU4 | The accused incited the complainant to hold a bottle against her vagina and took photographs of her | Per the agreed facts, this act each occurred on multiple occasions between 1981 and March 1983, whenever PN would stay with the offender Sexual assault (Cat 4) incite indecent act person < 16 - S 61E(2) Crimes Act 1900 Law part code 267 | 2 years | S 66DC(b) Crimes Act – Incite child under 10 to carry out sexual act towards person | 7 years |

78. It needs to be borne in mind that the nature of the offence the subject of this sentence is of an unlawful sexual relationship, not merely the commission of a range of offences which at the time they were committed had the maximum sentences that they did. As noted in Langbein v R [2008] NSWCCA 38 at [115]-[116] a s66EA offence is more serious than its constituent unlawful acts. This aspect lessens without erasing the favourable impact for the offender of subsection 8. As the Crown pointed out, and as subsection 8 makes clear, in arriving at the sentence the court must taken into account, “but is not limited by” the maximum penalty for the constituent offences at the time of the offending.

Delay and proportionality and totality

79. There are two issues. One is how the sentence is impacted by the delay between the time the first complaint was made by E in 1992, and the further delay between 2014 when these proceedings began, and now, the time of sentencing. The second issue is what impact on the present sentence does the 12 years in custody for the SA matter have? This is a question of both totality and proportionality.

80. The offence created under s66EA of persistent sexual abuse of a child was first introduced in 1999 in terms markedly different to its current forms. As at 2014 s66EA required three or more separate occasions of a sexual offence. As at 2014 P had provided three statements to police (a fourth was a typed version of the first statement), the contents of which are not fully known, other than the CANs filed at that time alleged two separate occasions of a sexual offence. In other words, it was not open, it would seem, to lay a s66EA charge at that time. Yet, according to the agreed chronology, the last statement provided by P was in 2012, so that the CANs of 2024 were based on material available as at 2014, yet there was no charge under the then s66EA, presumably because s66EA was not then retrospective, and was not in existence at the time of the offending; hence the reliance on s61E in the CANs filed in 2014. The point of this is that the amendment to s66EA in 2018 included a new subsection 7, which, unlike the previous versions of s66EA, applied to conduct occurring before the 2018 amendments to the section. In other words, had the prosecution of the offender progressed in 2014, he would be facing far less serious charges, and would be sentenced in line with the sentencing practices of the time of the offending.

81. The evidence does not make clear why no CAN was issued concerning E in 2014, and E gave a second statement in 2024, and after that the CAN concerning the s66EA charge where she was the complainant was filed.

82. Overall however, due being incarcerated for similar offending in SA, the consequences the offender is now facing are more dire.

83. The offender accepts that he suffers no disadvantage from the delay in prosecuting the present matter be it the delay from 1992 to 2014 or subsequently in respect of some impact on his life; eg it is not said that he was subject to some opprobrium or ostracision due to the fact of being charged back in 2014, nor is it said he has experienced some stress or anxiety from either 1992 or 2014 fearing or knowing his day will come and with his fate uncertain.

84. The offender does however argue that he is affected by delay for the reasons discussed above, namely because at the time that he was charged in 2014 the maximum sentences for the offences for which he was initially charged were no greater than 2 years. The charges first laid were in respect of P, and of the 4 types of offences constituting the s66EA charge, 2 of them had a maximum term of 2 years. These offences are what are referred to as “PU3” and “PU4” in the agreed facts, and are of inciting P to carry out a sexual act. The other 2 types of offences were of indecent assault, (so today, “sexual touching”) with the possible maximum sentence being either 6 years or 10 years, depending on whether the assault occurred before or after 14 July 1981, which cannot be determined. The maximum sentences for the comparable constituent offences presently are life (owing to cunnilingus now meeting the definition of sexual intercourse), 16 years and 7 years. In addition of course the offender now faces a charge that did not exist in 2014, s66EA, and which has a maximum sentence of life imprisonment.

85. Further, that the actual offence being dealt with presently did not exist at the time of the offence, and has a life sentence, further emphasises this view. The conclusion inevitably concerning sequence 3 involving P is that the sentences for the constituent offences would be significantly more lenient had the matters been the subject of sentence in 2014.

86. In the case of E, so sequence 4, it can be seen from the table that the maximum sentence of the 5 constituent offences were either 5 or 6 years, 6 years, 2 years and 10 years (taking the Victorian penalty as absent s66EA NSW would not have jurisdiction). The comparable maximum sentence today for these offences is 16 or 10 years for sexual touching (depending on time of offence), or life given the EU1 today meets the definition of sexual intercourse, 20 or 12 years, 7 years and 25 years. Although the variances do not mirror precisely the differences when considering sequence 3, the conclusion as to sequence 4 involving E is the same as for sequence 3 involving P namely that the sentences for the constituent offences would be significantly more lenient had the matters been the subject of sentence in 2014.

87. The submission of the Crown in this regard was that delay did not assist the offender. Yet that was based on matters personal to the offender, such as not suffering anxiety or opprobrium, something with which the offender agrees. The Crown argument in respect of sentencing practices hinged on a finding that s21B applied to these proceedings. The Crown has succeeded in that argument, but has not really advanced an argument as to how the issue of delay is to be dealt with, given that the delay has opened up the offender to be sentenced for 2 counts carrying life sentences, which he would not have faced, had the proceedings commenced in 2014 proceeded without delay. The Crown did allow that had the SA and NSW offences been sentenced together, totality would see some partial accumulation.

88. The delay between 1993 when the offender was first interviewed, which was after P and E had provided their first statements, and 2014 when the first CANs were filed, on one view can be said to be due to the offender failing to admit his conduct, something which I infer given that no action was taken. From 2014 to 2024 the delay is due to the offender’s incarceration in another state, the same situation as was dealt with in R v Todd (1982) 2 NSWLR 517. At 519-520 Street CJ said:

" ... it would be wrong, in my opinion, to disregard the practical situation that the appellant has already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. Within a space of some eight days the appellant committed the Sydney crimes and the Queensland crimes. If rather than being across the border in Queensland he had committed the second pair of crimes on the New South Wales side of the border it would obviously have been proper, indeed necessary, for a second New South Wales judge sentencing for the Sydney crimes at a hearing later than that on which the appellant had been sentenced for the Queensland crimes to pay regard to the totality of the sentences involved. Preferably, one would hope that, in the orderly administration of justice within this State, all offences would have come before the same judge on the one occasion. But assuming that they came before separate New South Wales judges, it would be a question for the second judge to evaluate what was the field open to be entered in sentencing for the Sydney crimes. It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality over this period of eight days of committing offences of similar character.

...

Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on a subsequent occasion, and to the fact that the sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between the offence and sentence, when lengthy, will often lead to consideration of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of the sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

89. The facts in Todd are very different to the present. Within 8 days the offender committed robberies in both Queensland and NSW; he was then sentenced in Queensland, and after serving that sentence came to be sentenced in NSW. It was considered appropriate to not only consider the principle of totality, but it was found to have an impact on the NSW sentence. The principle needs to be considered in the present case, but its impact is likely to be less, given the lengthy period of time over which the various offences were committed, and the accepted traumatic impacts suffered by each of the victims.

90. The major impact of delay in the present case is the fact that in the period of delay the law not only changed with the amendment to s66EA, but also because that change was retrospective, and added to that, given the date the relevant CANs were filed, the consequence that section 21B applies. None of the cases referred to deal with this factual circumstance, due to the rarity of retrospectivity regarding criminal offences. The argument that a wrongdoer is somehow being treated unfairly for this reason seems a hard one to make, given how grossly out of keeping with society’s expectations and norms is their behaviour. No real way forward as to how to treat this problem was advanced from either perspective by the parties.

91. The answer in my view based on the material in this case, is that the retrospective law applies. On one view, had the offender made admissions in 1993 this problem would not arise. That did not happen, and he now faces the current form of s66EA. It would seem the legislature considered the impact of the retrospectivity by including subs 8, which was not part of s66EA in 2014. The other difficulty for the offender in seeking to argue for some mitigation based on the changes in the law is that the intention of the legislature was self-evidently to capture within the operation of s66EA historic offenders. Although the offender can reasonably say had he been dealt with earlier the offence would be less serious, the harsh reality for him is he stayed quiet initially for some 11 years, and when 12 years after that the NSW authorities turned to deal with his case upon the end of his SA sentence, it was s66EA that he had to face. In doing so he has the benefit of subs 8, and also the principles of totality and proportionality, and also any relevant matters that arise from the passing of time, e.g. undue anxiety, opprobrium, or the opportunity to demonstrate rehabilitation and remorse. All these aspects are taken into account and given such weight as the facts and circumstances of this case require.

92. The position of the parties as to the issue of delay was ultimately largely agreed. The Crown submits that when sentencing the offender consideration should be given to the fact that had all the offences been dealt with at the same time “totality principles would have brought partial accumulation to an overall effective sentence”, but that the effect would be “minimal”. At the same time the Crown says the fact of the delay between the offending and sentence should have no impact favourable to the offender, arguing that the victims of offences of this nature are recognised to be reluctant to complain, particularly in the family context. The offender argues that totality principles benefit the offender both as to the two charges being sentenced, and by the need to consider the position if all the offending, including SA, had been dealt with at the same time. The offender also submitted that a 5 year sentence should be seen as more than five times severe as a sentence of one year, and noting the time served is already 14 years.

93. The issue can be considered in terms of proportionality also. In that regard, the case of Obbens [2022] NSWCCA 109 assists (and the following passages are from R v King [2023] NSWDC 100, where this issue was considered). In Obbens the offender had committed a series of sexual offences. In 2016 he was sentenced for 3 sequences occurring between 1987 and 1989. There were 3 separate victims. Then on 23 February 2022 he was sentenced in respect of 3 further charges of sexual offending which occurred in 1987 against one victim. In the time between his earlier sentence, serving his term, and his time back in the community prior to being further sentenced he had an extensive period of not offending, demonstrated insight, expressed remorse and did not minimise his offending. There was also evidence of the difficulties he had suffered in gaol. He had made positive steps towards rehabilitation.

94. At [18] of Obbens it was noted that the submissions concerning totality seemed to address the question of whether the judge in 2016 would have imposed a longer sentence had he been aware of the other offences. The court said that is not the correct approach, and said the real question, which might more properly be categorised as a question of proportionality rather than totality, is:

whether the total sentencing outcome (that is the 3-year full-time sentence imposed by Judge Frearson together with the 18-month community corrections order under appeal) could encompass the whole of the criminality

95. In this regard, concerning totality, or as the Court stated, more properly proportionality, the approach the Court endorsed was that put by Justice Dhanji in submissions, as follows:

But can I just ask you, that whole exercise [of] trying to compare [the] offence before Judge Williams and the offences before Judge Frearson, was that really necessary for totality purposes? It would have been enough for Judge Williams to say, ‘well, I’m considering imposing this sentence. Now, I step back and I have a look and I make a determination as to whether having regard to all the offending, the sentence, combination of the sentence imposed by Judge Frearson and the community corrections order, is sufficient to comprehend all of the criminality involved’ and if the answer to that question is it had been sufficient, well, that’s enough. [There is] no need to reverse engineer Judge Frearson’s sentence and ... work out what necessarily would have happened if they had all been sentenced by Judge Frearson.

96. The approach on this view therefore is for the sentencing judge to determine the appropriate sentence in the later case and to then as Justice Dhanji put it, step back and consider whether that sentence and the earlier sentence is proportional for the overall offending committed by the offender.

97. In determining this question of proportionality, the facts of the present case do not assist the offender in the way that the different facts in Obbens assisted the offender in that case. In the present case it is bordering on striking to consider that the offender went from the offending against E over a period of 9 years, then, when E for obvious reasons chose not to visit him, commenced with little delay to offend against P for a period of some 3 years, and when P became unavailable, he then commences offending against A for a period of some 10 years. The result is a period of 22 years of offending.

98. Thus there is the need to recognise s66EA(8), but also s21B, and also, on the question of proportionality, the need to bear in mind that there are 3 victims, and in each case a multiplicity of unlawful sexual acts. It should also be borne in mind the nature of what is presently charged, the unlawful sexual relationship, an offence that is more significant than its constituent parts, and which adds to the gravity of the sentence.

99. The above references to totality are in the context of taking into account in a later sentencing exercise, the sentence imposed by an earlier sentencing exercise. In terms of totality in sentencing for sequences 3 and 4 in these proceedings, and in determining the aggregate sentence, I note the following matters (the following passage comes from R v Knox (a pseudonym) [2025] NSWDC 482 at [101]-[102]). In the case of Hall v The Queen [2021] NSWCCA 220 Hulme J reviewed the principles of totality. He referred to R v Holder [1983] 3 NSWLR 245 which makes it plain that what is required for a sentencing judge is to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentence, "To achieve an appropriate relativity between the totality of the criminality and the totality of the sentences”. Put perhaps more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court, "Must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences*."*

100. Hulme J also referred to Cahyadi [2007] NSWCCA 1. At [27] of Cahyadi it was said in considering whether the sentence for one offence can comprehend the criminality of another:

"This is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course, it is more likely that where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will affect the criminality of both."

Determination

101. The approach taken will be to set an aggregate sentence, so that it is first necessary to determine the indicative sentences, and to apply the 25% discount to each indicative sentence, and to then set the aggregate sentence. In determining the length of the sentences the accepted long term substantial harm to the victims will be taken into account, and the maximum sentences for the constituent offences of the unlawful sexual relationship at the time of the offences will be taken into account. That factor will favour the offender, but not to a great extent due to the multiplicity of the constituent offences that were committed as identified by the facts, and also because it remains necessary for the sentence to reflect the different nature of the charged offences, that is, that they are charges of an unlawful sexual relationship that endured in each case for years, as opposed to a series of intermittent acts that would have been considered at the time of the offending.

102. Taking all of the matters considered above into account in the process of instinctive synthesis, I reach the conclusion that the indicative sentence for sequence 3, which is assessed as the less serious offence, should be 12 years, so 9 years after the discount. The indicative sentence for sequence 4 is 16 years, so 12 years after the discount.

103. In the present case it can be said that there was one continuous course of offending conduct from 1971 to 1983, and it can be argued that this is really just one ongoing offence. Yet that would not properly describe what has happened here, and the offender did not make such a submission. There are two victims. The first victim was only freed of the abuse by her mother’s separation from the offender, and had the wherewithal to not visit him thereafter. The second victim P did visit the offender, and he took those visits as the opportunity to continue his abuse of his adoptive children. The criminality involved in each of these offences is significant. Two children have been betrayed and abused, both for significant periods of time. I consider this to be a case where the impact of the principle of totality is rather modest. When the SA sentence is taken into account, there is an accepted consequence by the Crown of an impact on the present sentence, albeit minimal, on the ultimate sentence.

104. In my view the aggregate term of imprisonment should be 16 years, so that the head sentence would expire on 27 March 2040. In terms of when the sentence should commence, the considerations above and below concerning the SA sentence have lessened the head sentence and the non parole period, so that to backdate the sentence to be partly concurrent with the SA offending, would amount to double counting. The start date for the sentence will be 28 March 2024.

105. As to the non parole period, the offender submitted that a finding of special circumstances should be made due to the offender’s age, and also due to support he will need when returned to the community after so long in custody. The Crown conceded that there should be a moderate variation of the statutory ratio due to the offender’s age. I accept those submissions. There should also be a finding of special circumstances as explained below to recognise the statutory ratio provided for by s44 CSPA.

106. The statutory ratio on the proposed sentence allows a period of 4 years under supervision in the community, and results in a non parole period of 12 years. With a start date of 28 March 2024, the offender would be eligible to apply for parole on 27 March 2036, aged 89.

107. On those dates, and beginning with the SA sentence, he would have had an overall sentence of 28 years and with a non parole period of 24 years.

108. The fact of the offender not being paroled in SA has not really been fully explained. Based on the Parole record in evidence, there was a desire by the authorities for further interview, and a suggestion that the offender do some course. Whether he did so or not is not clear, but he withdrew his application. The offender plainly now wants the earliest release date possible. Although the sentence in SA is not subject to the NSW statutory ratio, I consider it appropriate that, at least as part of the consideration of the appropriate parole period and start date, that it be taken into account. By the statutory ratio a 28 year sentence would have a non parole period of 21 years, which with a start date of 2012 would expire in 2033. To achieve this would require a non parole period 16 year sentence of 9 years rather than 12 years. This would see the offender released on parole in 2033 aged 86.

109. The conclusion I reach is that the finding of special circumstances is one that results in a non parole period of 8 years, expiring on 27 March 2032, when the offender will be 85 years of age.

110. That this is a heavy overall sentence commencing in 2012 is recognised. Much consideration has been given to whether a lesser head sentence and less non parole period is more appropriate. I have determined that it is not, based on all the facts and circumstances of the case, and also because I consider the ultimate result as to the minimum time to be spent in custody of 20 years overall and 8 years in respect of sequences 3 and 4 is the minimum time required for these very grave offences.

111. In my view the offender’s SA offending and NSW offending plainly reflect similar unlawful and sexually predatory behaviour. Yet when the matter is considered with some greater degree of particularity, specifically the 3 different victims and the way in which the offender moves from one victim to another, over a period of 22 years, the criminality is very significant, to the point that I consider the non parole period arrived at of 8 years to date from the end of the SA sentence is appropriate. Any other non parole period, which it must be recognised results in an overall non parole period of 20 years, would not “reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence”; see Regina v Simpson (2001) 53 NSWLR 704.

Orders

1. The offender is convicted of sequences 3 and 4.
2. The indicative sentences before and after the 25% discount have been noted above, and the offender is sentenced to an aggregate term of imprisonment to date from 28 March 2024 with a non parole period of 8 years, expiring on 27 March 2032 and with a balance of term of 8 years, expiring on 27 March 2040.

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Amendments

06 March 2026

Pseudonym name change to not clash with earlier case name.