R v PM

OBJECTIVE SERIOUSNESS

1. The offences before the Court carry sentences of imprisonment ranging from a maximum of 4 years to a maximum of 25 years and some of the offences have a standard non-parole period specified. All of the offences have therefore been treated by Parliament as being serious crimes. However, it is important that I make an assessment of the objective seriousness of each of the offences by reference to their particular circumstances.
2. As a general observation I note that none of the offences are said to have involved threats or overt violence beyond the violence and violation inherent in the offending itself. Of course if there had been threats or violence then that would have increased the objective seriousness of an offence. However, the absence of threats or violence is not a matter that mitigates the seriousness of any of the offences given the insidious nature of child sexual abuse and the helpless position in which the child victim is usually placed.
3. Counts 1 and 3 each involved an indecent assault by the offender touching with skin on skin contact the penis of JR. JR at the time was only seven years old which significantly increases the seriousness of the offences given that the s 61E(1) offence did not contain an age element and because the younger the child, generally the more serious the offence. Also, the offender was much older being in his early 30's.
4. The offences were without doubt carried out for the offender's sexual gratification and each offence involved a breach of trust given that JR's mother trusted the offender to be alone with JR when they would both be naked.
5. I regard each offence as being at the mid-range of objective seriousness. Also, the offences were not isolated incidents, as JR said there were other occasions where similar things happened. Evidence to a similar effect was given by OS who said that sexual offending like that for which the offender is to be sentenced was frequent. While the offender is not to be punished for these other acts against JR and OS, this evidence, which I accept beyond reasonable doubt, means that the offences for which he is to be sentenced cannot be regarded as isolated lapses in otherwise appropriate behaviour.
6. Count 5 is an offence of indecent assault on a child aged under 10 which was committed on the offender's son when he was aged about 6 and the offender aged 48 or 49. It involved the offender touching OS's penis over his clothing initially but then progressed to skin on skin contact. OS, at about 6 years, was considerably younger than the 10 year threshold for this offence and there was obviously a very significant age difference between he and the offender.
7. More significantly however, is the fact that the offender was OS's father and so the offence involved a most serious breach of trust and authority arising from the father/son relationship. See MRW v R [2011] NSWCCA 260 at [78] per Bathurst CJ. Mohindra v R [2020] NSWCCA 340 at [25] per Baston JA. The offence also occurred in OS's home where he should have been safe from predatory conduct like this. I regard the offence as being well into the mid-range of objective seriousness.
8. The count 6 offence of sexual intercourse was part of this same incident and involved the offender performing fellatio on OS who was then under 10 years, namely about 6, while the offender was much older at 48 or 49. As already observed, the offence involved a most serious breach of the trust and authority arising from the father/son relationship and the offence occurred in a place which was OS's home. I regard it as being at the mid-range of objective seriousness.
9. Count 8 is an offence of incite act of indecency with a child under 10 in which the offender told OS to touch the offender's erect penis, skin on skin while they were camping in a tent. OS at that time was between about 5 and 8 years of age and the offender 54 or 55 years old and thus much older. Given the inexact evidence about OS's age, I approach the offence on the basis that he was about 8 years of age and thus towards the upper-range of the threshold for this type of offence.
10. The offence in effect occurred in what was the home, on that night at least, of OS and again, involved the serious breach of trust and authority arising from the father/son relationship. I regard this offence as being at or just below the mid-range.
11. Counts 10,11 and 12 all relate to the same incident which occurred one evening after Little Athletics when OS was aged around 10 to 11 years and the offender aged about 53 to 55 years. Each of the offences occurred in OS's home and counts 10 and 12 involved a gross breach of both trust and authority.
12. Each of the indecent assault offences, those being counts 10 and 12, involve skin on skin contact, and assuming in favour of the offender that OS was about 11 years old at the time, he was still considerably younger than the 16 year age limit for this type of offence. In my view, each of these two offences are at the mid-range of objective seriousness.
13. As to count 11 which occurred during the same incident, this involved the offender performing fellatio on OS who was about 11 years old and therefore still comfortably under the 14 year threshold for this offence at that time. As this offence itself includes an element of "being under authority" this aspect is not an additional aggravating matter. However, the offence still involved a breach of the trust inherent in the father/son relationship. I regard this as an offence just below the mid-range.
14. Count 14 is another offence of sexual intercourse with a child between 10 and under 14 years "under authority" which involved the first time OS could recall where he was required to penetrate the offender anally with his penis. At the time OS was about 12 years old and therefore around the middle of the age range for an offence under s 66C(2). It again occurred in OS's home and although it involved a breach of authority, that is an element of the offence and not an additional aggravating matter. However, the offence still involved a serious breach of the trust in a father/son relationship. In my view the objective seriousness is in the mid-range.
15. Count 15 is an indecent assault of a child under 16 which occurred when OS was about 12 and therefore still well under the 16 year threshold while the offender was about 55 years of age. The offence involved the offender again touching OS on the penis. The offence again took place in the home of OS and it involved a breach of both trust and authority. It is a mid-range offence.
16. Count 20 is an offence of sexual intercourse with a child aged 10 but under 14 years "under authority" which took place when OS was around 13 years and the offender was about 56. The offence involved OS being required by the offender to penetrate the offender's anus after the offender had placed a condom onto OS's penis. It again occurred in OS's home and although "under authority" is an element of the offence and not an additionally aggravating matter, the offence is aggravated by reason of a breach of trust. It is an offence that is in the mid-range of objective seriousness.
17. Count 24 is another offence of sexual intercourse with a child between the ages of 10 and 14 years "under authority". It occurred when OS was about 13 and the offender was about 56 years of age and involved OS being required again to penetrate the offender's anus with his penis on which a condom had been placed. It occurred in the home of OS and like the previous offence, is aggravated because it involved a serious breach of trust. It is a mid-range offence.
18. Counts 28 and 29 are two further offences of sexual intercourse with a child aged 10 to 14 "under authority", which were part of the one incident when OS was about 13 and the offender aged about 56. Count 28 involved the offender penetrating OS's anus with his fingers and count 29 penetration with his penis until he ejaculated.
19. Each of the offences occurred in the home of OS and they each involved a breach of the trust inherent in the father/son relationship. I regard the count 28 offence as being mid-range but the count 29 offence is comfortably above mid-range.
20. Counts 30,31 and 32 were also part of one incident which took place in a shower. Count 30 being an indecent assault of a child under 16 years where the offender touched OS on the penis and count 31 involving the offender inciting a child under 16 who was under his authority to commit act of indecency by touching the offender's penis.
21. Count 32 however, is a far more serious offence of sexual intercourse with a child aged 10 to 14 "under authority" which involved the offender penetrating OS's anus with his penis after lifting him up in the shower. Each of the offences were committed in the home of OS. At the time OS was about 13 and the offender about 56. The Count 30 offence is aggravated by a breach of both trust and authority while counts 31 and 32 are aggravated by a breach of trust only because "under authority" is an element of those counts. I assess counts 30 and 31 as being in the mid-range but count 32 is comfortably above the mid-range.

VICTIM IMPACT STATEMENT

1. Victim Impact Statements from both JR and OS were presented to the Court which explained some of the significant emotional harm and damage they have each experienced due to the offences committed upon them. It was initially submitted on behalf of the offender that under s 21A(3) (a) of the Crimes (Sentencing Procedure) Act 1999 I would find that any harm suffered to the victims was not substantial. However, that submission was sensibly and appropriately abandoned during oral submissions.
2. While I was not asked by the Crown to treat the contents of the two Victim Impact Statements as an aggravating feature under s 21A(2)(g), and I do not do so, they confirm the almost inevitable fact that many or most victims of childhood sexual offences will be left with a fractured or diminished sense of safety, feelings of a devalued or altered sense of self and uncertainty about or an inability in some cases to form trusting relationships as well as various other difficulties.
3. As the Courts have said many times, emotional and psychological harm is to be expected when offences like this are committed against young children. That is particularly so in my opinion where the offending was at the hands of a trusted person as was this offender. In many cases the adverse effects on the victim will be life-long. In this case the Victim Impact Statements speak convincingly of on-going consequences of the type I have described.

SUBJECTIVE MATTERS

1. I turn then to consider subjective matters relating to the offender himself. The offender is now 66 years of age. Other than the offences before the Court, he has no criminal history and he is therefore entitled to some mitigation of the sentences by reason of that fact as well as the fact that he has committed no offences since 2013. The offender's subjective case has been placed before the Court largely by means of a report from forensic psychologist Dr Rebecca Smith. The offender told Dr Smith that his father left the home when the offender was 4 years old and that sometime after this his mother put he and his brother into Boys Town where he was sexually abused between the ages of about 6 and 13 years.
2. He told the psychologist that he did not disclose the abuse as he was paid money which he found valuable. The psychologist appears to have had trouble eliciting from the offender any explicit acknowledgement of the effects of this history of sexual abuse upon him with the offender saying, among other things "I don't believe it affects you. But you should be big enough to get over it".
3. In my view however, it is probable that this represents a degree of denial of what would have been a traumatic part of the offender's young life. He also reported to Dr Smith a feeling of being emotionally neglected by his mother and appeared more willing to acknowledge this as well as the negative impact of being treated as un-intelligent at school.
4. The offender also referred to his experience of a motor vehicle accident which he said left him with a diagnosis of Post-Traumatic Stress Disorder, although the offender said he no longer experienced any PTSD symptoms. Ultimately, the psychologist concluded that the offender does not meet the criteria for any mental illness or personality disorder.
5. While the psychologist also concluded that the offender does not appear to have any long standing sexual deficits or sexual deviance', she acknowledged that this was difficult to assess due to the offender's denial of the offending. The offender does however have a long standing problem with alcohol abuse and a long history of supressing his feelings as well as some anxiety and depression. Notably, the psychologist concluded that the offender "does not have any relevant mental health diagnosis which may be used as mitigation pertaining to his offending behaviours". It was not submitted that any of the offender's background contributed to the offences in any material way or that his background reduces his moral culpability for them.
6. However, in my view it would be unrealistic to think that a childhood like that set out in the unchallenged history given to the psychologist did not leave some permanent mark on the offender. Based on the evidence and submissions before me I am unable to make any precise assessment of what that might have been and the extent, if any, to which it can be said to reduce the offender's moral culpability.
7. In my view his moral culpability for all of the offences is high and especially high with regard to the offences against his own son. However, I think that the offender's moral culpability can be mitigated to some slight degree by reason of his own childhood experiences which as I have said must have left some permanent marks on him in terms of his own psycho-sexual development and ability to maintain appropriate relationships and boundaries.

REMORSE AND REHABILITATION

1. Turning to consider matters of remorse and prospects of rehabilitation and future risk. The offender maintains his innocence, despite the jury's verdicts and so there is no remorse for his offences.
2. Also, according to the psychologist, he engaged in minimising, justifying and victim-blaming, saying that both victims are lying but for different reasons. I record my own conclusion here that neither of them were lying and that they were compelling, believable witnesses.
3. The offender told the psychologist that he was not prepared to engage in sex offender treatment programs due to his refusal to accept his offending but did agree that he may benefit from some general psychological involvement. The psychologist concluded: "When considering the offender's prospects of rehabilitation his responses suggest that a hesitation in acknowledging important problems and in accepting the need for help in dealing with those problems".
4. This is in my view a realistic assessment, given the offender's history of childhood abandonment and sexual abuse. In the absence of some acknowledgement of his offending and willingness to engage in treatment it is difficult to form a positive view of the offender's prospects of rehabilitation. It seems to me that his advancing age, likely limited exposure to children as well as the period that he must spend in prison are the most important factors in assessing his future prospects and risk of re-offending.
5. Based on the current evidence, those prospects can only be described as guarded and he remains a potential risk. I note the submission on behalf of the offender that the sentence should lean towards mercy especially given his age and prior lack of offending. I have had regard to those matters which are obviously of relevance but of course they cannot operate so as to reduce the sentence to one that does not reflect the objective seriousness of the offending: see Woodward v R [2017] NSWCCA 44 at para 88.
6. Furthermore and as was said by Hidden J in Deng & Matthews v R [2013] NSWCCA 326 at para 60: "... unpalatable as it may be the authorities recognise that an appropriate sentence may involve the risk of the offender spends the rest of his or her life in custody: R v Holyoak [1995] 82 A Crim R 502 per Allan J at 507".

THE PANDEMIC

1. I have also taken into account the fact that the offender's time in custody since August 2022 and continuing is during the current pandemic and that the pandemic continues to impose restrictions and difficulties on many or most inmates in terms of access to visits, programs and other services.
2. I have also taken into account the offender's advancing age and the greater anxiety and risk to which he is exposed in a custodial environment both as a result of the pandemic and generally.
3. Reliance was placed by the offender on the likelihood that his incarceration would be served in protective custody and that this will increase the onerous nature of his punishment. I accept that this is likely so but in the absence of specific evidence as to the strictures or otherwise, of such custody it is not a matter to which I attach great weight.

DETERMINATION

1. I have had regard in determining the appropriate sentence to the terms of s 3A of the Crimes (Sentencing Procedure) Act 1999 and the important purposes of sentencing namely, the requirement for adequate punishment, to prevent crime by deterring the offender and others, to protect the community, to make the offender accountable, to denounce his conduct, to recognise the harm done to the victim and the community generally, but also to have regard to the need to promote the rehabilitation of the offender.
2. I am satisfied for the purposes of s 5 of that Act that each of the offences require a period of full time custody. I intend to impose an aggregate sentence.
3. Given that I am sentencing for multiple offences I have had close regard to totality principles. It was conceded on behalf of the offender that there ought be some partial, notional accumulation. However, in making this assessment I take into account that some of the offences against OS were committed as part of what was, in effect, a single episode of sexual offending. In those cases while there ought be some degree of accumulation it should be limited. In this regard I am referring respectively to counts 5 and 6; counts 10,11 and 12, counts 28 and 29, and counts 30,31 and 32 respectively.
4. The indicative sentences are as follows; PM should understand that these are not the sentence that I will impose, these are indicative sentences, and I will indicate the actual sentence in a few moments. Dealing first with the indecent assault and incitement of indecent assault offences. The indicative sentences are as follows:
5. For counts 1 and 3, imprisonment of 1 year and 6 months in each case.
6. For count 5, 3 years and a non-parole period of 2 years and 1 month.
7. For count 8, 2 years and 6 months.
8. For counts 10,12,15 and 30, the indicative sentences are 3 years with a non-parole period of 2 years and 1 month.
9. For count 31, 2 years.
10. The indicative sentences for the sexual intercourse counts are as follows;
11. For count 6, 6 years and 3 months with a non-parole period of 4 years and 3 months.
12. For count 11, 5 years.
13. For counts 14,20 and 24, 5 years and 3 months in each case.
14. For count 28, 6 years.
15. For counts 29 and 32, 6 years and 9 months.
16. In determining the ultimate aggregate sentence I have had regard to all of the matters to which I have made reference, and kept firmly in mind the purposes of sentencing set out in s 3A to which I have referred. It is important that the ultimate sentence appropriately reflect the serious nature of the offences that the offender has committed against two victims and especially the grave series of degrading and damaging offences upon his own son over a period of 7 to 8 years when he was between the ages of about 6 and 13 years.
17. I must avoid imposing an inappropriately crushing sentence. But it must nonetheless be one that acknowledges the serious and repeated nature of the offending, the need for personal and general deterrence, and all the other factors in s 3A.
18. I have made a finding of special circumstances to adjust to some degree the ratio of non-parole period to head sentence. This is based upon the following matters: firstly, this being the offender's first time in custody, secondly his age, and thirdly, the need for him to be monitored upon release to the community. However, I must still set a non-parole period that represents the minimum period that the offender must spend in custody having regard to the serious crimes that he has committed. Also I have taken into account the fact that the head sentence that I intend to impose will, because of its length, already involve a significant period on supervised parole.
19. I am required to give the offender the following warning under the Crimes (High Risk Offenders) Act 2006, and in that regard I say as follows to PM:
20. PM I am obliged to tell you the existence of the Act to which I have just referred which applies to serious offences as defined including, some of the offences for which you have been sentenced. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you would be a "high risk offender" who poses an unacceptable risk of committing a serious offence. It is therefore in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.
21. I convict the offender of each offence. I impose an aggregate sentence of 15 years imprisonment. I impose a non-parole period of 10 years, 3 months. Those sentences will date from 8 August 2022. The head sentence will expire on 7 August 2037 and the non-parole period on 7 November 2032.
22. HIS HONOUR: Ms Crown,. Ms Pervan, anything to raise?
23. BODY: No your Honour.
24. HIS HONOUR: Thank you the Court will adjourn.

Amendments 29 September 2023 - Amended date of birth DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2023