R v RJ

The sentence hearing

1. The sentence hearing was delayed while a second judge alone trial presided over by his Honour Judge Neilson took place between 1 June and 7 July 2022. The sentence hearing was then adjourned on two further occasions due to delays in the offender obtaining psychological evidence upon which he wished to rely. Eventually the sentence hearing took place on 18 November 2022. Exhibit A was the Crown sentence summary which set out in tabular form the offences for which the offender had been found guilty on 9 May 2022 together with the maximum penalty and standard non-parole period prescribed for each offence. Exhibit A also included the NSW Police Force report that the offender had no prior offences and the offender's custodial history.
2. Exhibit A also included Victim Impact Statements ("VIS") from LJ and AH which are referred to below.

The offender's evidence

1. The offender relied on a report of Dr K Dilati dated 11 November 2022. Dr Dilati is a psychologist who interviewed the offender via audio-visual link on 13 October 2022 for 2 hours and on 19 October 2022 for 1 hour.
2. Dr Dilati set out a personal history provided by the offender. He was born in Bagdad, Iraq the eldest of seven children and his family were from a minority ethno-religious Mandaean group which was persecuted in that country. At the age of 17 the offender was reportedly kidnapped by Islamic Iraqis, beaten, and then released after he agreed to forfeit a sum of money. He and his family then fled to Jordan and in 2004 he migrated to Australia.
3. The offender reported a stable educational history. In 1998 he completed a Diploma of Music at university however he was predominantly employed in his father's jewellery business prior to leaving Iraq. In Australia he had worked as a security guard and he had become self-employed as a security guard. The author noted that the offender married at the age of 21 and there are three children of that marriage, LJ, SJ and MJ. The two eldest children are legally blind due to a genetic predisposition in the female line. SJ was further diagnosed with autism.
4. The offender denied a history of mental health conditions or symptoms and the author opined that at the time of the offending conduct he did not display symptoms consistent with a mental health condition including post-traumatic stress. Upon psychometric assessment he was assessed as suffering a moderate range of depression, moderate anxiety and normal stress related to his incarceration.
5. Under the heading "opinion" the author described the offender as "highly elusive and guarded during the interview". The offender denied the offending conduct and any paedophilic interests. He reported a twenty year history of pornography use from the age of 21, but was adamant he had not viewed child pornography. Dr Dilati opined that this chronic use suggested an addiction to pornography.

The Crown submissions

1. The Crown relied on a detailed written outline of submissions in which it set out the complex procedural history of the matter. The Crown also set out well established principles of sentencing, submitting that the only sentence reasonably open to the court was one of full-time custody. The Crown also outlined well-established principles for sentencing offenders guilty of sexual offences against children which emphasised that general deterrence is particularly important where the offender is in a position of trust in relation to the victim. The courts will recognise that child sex offences have profound and deleterious effects on victims for many years if not the whole of their lives, referring to R v Gavel [2014] NSWCCA 56 at [110].
2. In assessing the objective seriousness of child sex offences the Crown referred to a non-exhaustive list of relevant matters as follows:-

• How the offences took place;
• Over what period of time;
• With what degree of force or coercion;
• The use of threats or pressure before/after to ensure the victim's compliance and/or silence; and
• Any immediately apparent effect on the victim.

1. Here, the Crown submitted the offender's sexual offending against the victim represented an extremely serious course of criminal conduct. The offending constituted an extremely gross breach of trust by virtue of the father-daughter relationship and the offending conduct was not isolated but occurred on many occasions during the victim's formative years. The offences took place in the home of the victim and some of them took place in her bedroom. The VIS outlined the significant harm caused by the offending conduct. Further, the victim was a vulnerable person due to her visual impairment. The Crown submitted the offender also engaged in coercive and manipulative behaviour to persuade the victim not to report any sexual misconduct.
2. The Crown made the following submissions as to the objective seriousness of each offence:- 1. Count 1 - above mid-range 2. Counts 2 and 3 - high-end of the range of seriousness 3. Count 4 - high-end of the range 4. Count 5 - high-end of the range 5. Count 6 - above the middle of the range 6. Count 7 - above mid-range 7. Counts 8 and 9 - high-end of the range 8. Count 10 - high-end of the range 9. Counts 11 and 12 - high-end of the range 10. Counts 13 and 14 - high-end of the range 11. Counts 15, 16 and 17 - high-end of the range 12. Count 21 - above mid-range 13. Count 22 - mid-range
3. The Crown relied on the following aggravating factors pursuant to s21A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") in relation to the offences relating to LJ:-

(2)(eb) The offence was committed in the home of the victim or any other person; All offences other than Count 6 were committed in the home of the victim where she was particularly entitled to feel safe. Count 6 occurred in the home of the victim's grandparents where she was sleeping. This was also a location where she was particularly entitled to feel safe.

(2)(g) The injury, emotional harm, loss or damage caused by the offence was substantial As outlined by LJ in her VIS, the offending conduct has affected every aspect of her life to a significant extent. She has been ostracised from her cultural community for reporting the offences and her relationship with her immediate family has been affected.

(2)(k) The offender abused a position of trust or authority in relation to the victim As the natural father of the victim the offender occupied a position of trust and authority in relation to her and the commission of the offences constituted a gross breach of trust. The Crown submitted that this aggravating feature applies to each of the s61M(2) offences and to Count 21. The Crown does not rely upon this aggravating feature in respect of the s66C(2) or s66C(4) offences as it is an element of those offences that the victim was under the authority of the offender.

(2)(l) The victim was vulnerable The Crown submitted that the victim was a vulnerable person due to her visual impairment. She had been diagnosed with Leber's amaurosis and suffered from visual deficits at the time of the offences.

1. In relation to the offences relating to AH the Crown submitted it was an aggravating factor pursuant to s21A(2)(eb) that the offence was committed in the home of the victim.
2. The Crown submitted that an aggregate sentence must be imposed which justly and fairly reflects the totality of the criminality involved. The Crown submitted that there were two factors warranting accumulation here. First, there were two victims and secondly the offending in respect of LJ was a serious course of offending over a lengthy period of time.
3. The Crown further submitted that there were no overriding factors which indicated the Court would make a finding of special circumstances.

The offender's submissions

1. Counsel for the offender submitted that there was no medical evidence supporting the reference in LJ's VIS to her suffering from PTSD and therefore no weight should be placed on her self-diagnosis.
2. In relation to the subjective matters to be taken into account the offender was now 41 years of age. He had been born in Iraq and had a very difficult upbringing as part of the Mandaean community which was a minority. He and his family moved to Jordan when he was aged 17 after he had been kidnapped by an extremist group. Further when he was younger, he had witnessed his father being injured when acid was thrown on his face causing blindness.
3. Counsel referred the court to a number of comparable sentences to assist in the sentencing process. In relation to the objective seriousness of the offending Counsel submitted as follows:- 1. Count 1 - this offence fell within the mid-range and the victim was 13 years of age at the time of the offence. 2. Counts 2 and 3 - these offences were also within the mid-range. It was submitted there was nothing specific taking the matter into the high range as advocated by the Crown. It was however an aggravating factor that the victim was a person under authority. 3. Counts 4 and 5 - it was submitted that these offences were close to the high-range but involved very brief offending. 4. Count 6 - this offence fell below mid-range. It was brief offending of approximately three minutes accompanied by no acts of violence. 5. Counts 7, 8 and 9 - these offences were within the mid-range. It was submitted that there was no violence involved. 6. Count 10 - this offence fell in the lower-range. 7. Counts 11 and 12 - these offences fell within the mid-range. There was no genuine violence rather it constituted part of the sexual activity that took place. 8. Count 13 - this offending fell within the lower-end of the range. The offending was of 1 minute duration. 9. Count 14 - this was also at the low-end given that it was of two minutes duration. 10. Counts 15, 16 and 17 - these offences fell within the mid-range having regard to the totality of criminality involved. 11. Count 21 - this assault involved a slap in the face and fell below the mid-range. 12. Count 22 - this assault was also in the low-range.
4. Counsel submitted that a finding of special circumstances should be made given the accused's disadvantaged background. He had done well since he arrived in Australia and was educated and engaged in a successful business. He had lost his family as a result of the offending and had suffered hardship in custody. Whilst in custody he had no opportunity to develop a relationship with his third child. The offender also suffered from high blood pressure, diabetes, and high cholesterol levels. His diagnosis of depression was not linked to the offending conduct.
5. Counsel submitted that the principle of totality should be applied given there were numerous offences spread over a number of years. The first offence occurred when the victim was 13 years of age however, the offending was not necessarily a calculated course of conduct. It was submitted that "the offender had not been able to create a bonding like that of normal parenting and had crossed the line into criminal conduct". His continuing denial of the criminal conduct demonstrated no insight into his offending. The court would not take into account any remorse. However it was submitted that the risk of re-offending was low and the offender had no criminal record. The context in which this criminal conduct occurred will not be available to him in the future.
6. Counsel submitted that the reference in the report of Dr Dilati regarding pornography was a fleeting reference only and no weight should be placed on it. The offender denied any sexual interest in children.
7. Counsel submitted that the VIS of AH who was the offender's wife did not raise any significant factor on sentence. The offending constituted a common assault which had resulted in the breakup of the family which was not an aggravating factor. Moreover, the assault had little impact on her given the evidence at trial that for a time she had a continuing relationship with the offender. Similarly, little weight could be placed on the VIS of LJ. The consequences of the offending outlined therein would all be contemplated by the offending and the court would not be satisfied beyond reasonable doubt of the matters outlined therein and should approach the with extreme caution as it was untested evidence.
8. Counsel submitted that any sentence should be backdated by over three years for the time the offender has spent in custody. It was acknowledged that general deterrence was important in the sentencing process however given that this was his first time in custody and the impact of the COVID-19 pandemic, both matters should lead to a finding of special circumstances.
9. Counsel for the offender was given leave to file a further written outline of submissions on or before 25 November 2022. On 1 February 2023 the court received a further written outline of submissions on behalf of the offender. Those submissions concerned two matters. First, whether the VIS of LJ should be taken into account as an aggravating factor pursuant to s21A(2) of the CSPA supplementing the submission outlined in [21] above. Secondly, the submissions fleshed out the submissions made at the sentence hearing in relation to the objective seriousness of the offending in each count, as outlined in [23] above.
10. In relation to the VIS of LJ, counsel submitted that the court should exercise caution in relation to the weight to be placed on an untested VIS having regard to the level harm anticipated by the legislature for such offences. It was submitted that where it was asserted that the offences caused harm beyond that ordinarily expected of the offence charged, that must be proved beyond reasonable doubt, relying on R v Youkhana [2004] NSWCCA 412 at [26]; R v Tuala [2015] NSWCCA 8 at [57]. It was submitted that there was no objective evidence of any psychiatric illness suffered by LJ and the court should give no weight to the victim's self-diagnosis of PTSD, depression and anxiety. Further, there was no objective psychological evidence to confirm that the victim did not complete school as a result of the offences. Counsel further submitted that "some of the mental harm asserted by LJ may have been caused by other factors, notwithstanding the seriousness of the charges," notwithstanding no evidence was relied on for that submission, and no other cause identified.
11. Counsel submitted that there was no evidence of any harm suffered by the victim AH as a result of the assault on her. It was further submitted that the fact that all offences but for Count 6 occurred in the home of the victim was an aggravating factor, however there was a significant degree of overlap between the offences where a further aggravating element was that the offending conduct occurred whilst the victim was under the offender's authority. It was submitted that the court must be careful not to double count those aggravating factors. There was no authority relied on for that submission. The balance of the submissions fleshed out the submissions made at the sentence hearing in respect of the objective seriousness of each count as summarised in [23] above. The only notable matters are:- 1. In respect of Count 6 whereas at the sentence hearing it was submitted the offending fell below the midrange of objective serious, however there were aggravating features that were not an element of the offence which in all the circumstances now meant the offending fell into the midrange. 2. In respect of Counts 15, 16 and 17 whereas at the sentence hearing it was submitted that the offences fell within the midrange, having regard to the totality of the criminality involved, counsel accepted that the conduct in relation to Counts 15 and 16 fell at the higher end of the range however Count 17 fell into the lower end of the range given that the sexual intercourse was brief and on the Crown case lasted only 2 minutes.

Crown submissions in reply

1. In reply the Crown submitted that it relied on the VIS of LJ to ground a finding pursuant to s21A(2) of substantial harm. It did not rely on the VIS of AH for the same reason.
2. The Crown submitted that the report of Dr Dilati in Exhibit 1 should be given limited weight given the offender had not been called to give evidence. Further, the author had found the offender elusive and guarded in her assessment.
3. The Crown opposed a finding of special circumstances but conceded that the impact of the COVID-19 pandemic on the prison population was an appropriate basis for such a finding.
4. The Crown queried the submission made on behalf of the offender that he had had a successful business. The evidence merely established that he had been working as a security guard. With respect to his disadvantaged upbringing the Crown noted that the offender had suffered from no mental health condition related to the offending. Further, the loss of his family was the inevitable outcome of his criminal conduct.
5. The Crown noted that whilst on bail the offender had spent time with his youngest child contrary to his bail conditions and an ADVO issued against him.
6. The Crown conceded that the criminal conduct was not a planned or organised criminal activity but it did constitute ongoing opportunistic offending. Whilst the offender had no previous criminal convictions, there was no evidence advanced in the offender's case as to his good character.
7. In relation to the offender's prospects of rehabilitation and risk of reoffending the Crown noted that the offender continues to deny the offending and there is no evidence of remorse. It was clear that he had no insight into his offending conduct. There was evidence of that in the trial when he had told AH that she was also at fault by saying, "but you wanted this thing".

Determination

1. Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons 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 or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community".
2. I assess the objective seriousness of the offending as follows:-

Count 1

1. In accordance with my finding of fact at trial, Count 1 was an occasion between 29 January 2015 and 31 December 2017 when the victim was sleeping in her parents' bed. She was aged 12 years at the time and the offender came to the bed and slipped his hand inside her shirt as she was starting to doze off. He told her that he loved her and then squeezed and rubbed the victim's breast under her clothes. The offender told the victim that she could not tell anyone about it because "people think it's wrong but it's not wrong" and he further said "if you tell anyone in our family, our family will like, it will fall apart… if you tell anyone then the whole family will be destroyed and you will be the root of that…".
2. I am satisfied that this offence fell within the mid-range for an offence pursuant to s61M(2) of the Crimes Act 1900.

Count 2

1. Count 2 concerned an occasion between 1 June 2015 and 31 December 2017 when the offender squeezed the victim's breasts, rubbed and squeezed her bottom and rubbed her vagina on the outside. This offending was also within the mid-range for an offence pursuant to s61M(2) of the Crimes Act 1900.

Count 3

1. This count concerned the same occasion as Count 2 and involved the offender penetrating the victim's anus with his penis. She was 12 or 13, and the offender told her that "the first time this might hurt a little bit". He also told the victim that she was not allowed to tell anyone at all about it.
2. I am satisfied that this offending fell within the mid-range for an offence pursuant to s66C(2) of the Crimes Act 1900, and was toward the higher-end of the mid-range for such an offence.

Count 4

1. On an occasion in August or September 2017 the offender came into the victim's bedroom and told her to sit up and that there was something that he wanted her to do for him. He then placed his exposed penis on her cheek and mouth and she pulled away and said to him that she wanted to sleep.
2. I am satisfied that this offending fell within the mid-range for an offence pursuant to s61M(2) of the Crimes Act 1900, and towards the higher-end of the mid-range for that offence. It involved skin on skin contact between the offender's sexual organ and the victim's cheek and mouth.

Count 5

1. On another occasion in August or September 2017, close in time to Count 4, the offender came into the victim's bedroom, pulled his pants down and placed his penis on her bottom lip. This offending also fell within the mid-range for an offence pursuant to s61M(2) of the Crimes Act 1900.

Count 6

1. This offence occurred between 1 September 2017 and 8 October 2017 when the offender and the victim were visiting her grandfather's house. She went to sleep in the spare room and the offender got into bed in the same room. He told her to "come next to me" and she shuffled closer to the bed at which point he ran his hands down her body and placed his hand on her breast over her clothing for a period of about 3 minutes. This offending fell just below the mid-range for an offence pursuant to s61M(2) of the Crimes Act 1900. It involved offending of short duration only.

Count 7

1. This offence occurred between 1 December 2017 and 28 January 2018 when the victim was in her parent's bed next to the offender. He took her hand and placed it on his penis on which he had placed a condom. I find the objective seriousness of the offending fell within the mid-range for an offence pursuant to s61M(2) of the Crimes Act 1900.

Count 8

1. On the same occasion the offender touched the victim's bottom, vagina and breast and rubbed the outside of her vagina with two fingers.
2. I find the objective seriousness of this offending fell above the mid-range for an offence pursuant to s61M(2) of the Crimes Act 1900.

Count 9

1. On the same occasion the offender got the victim to roll over and tried to place his penis with a condom on into her bottom. He was unable to do so and took the condom off and then inserted his penis into her anus for five minutes or so. Given the age of the victim, namely, 13 years this was objectively serious offending above the mid-range for an offence pursuant to s66C(2) of the Crimes Act 1900.

Count 10

1. On an occasion between 1 December 2017 and 31 December 2017 the victim was in her bed and pretended to be asleep when the offender came into her room. The offender put his penis on her mouth and forced his penis into her mouth telling her to "suck it" which she did for a minute or so. This offending was also objectively serious offending, within the mid-range for an offence pursuant to s66C(2) of the Crimes Act 1900.

Count 11

1. On an occasion between 1 December 2017 and 28 January 2018 the offender had sexual intercourse with the victim by placing his penis into the victim's anus. The offender had told the victim to go to her mum's room and wait for him there. He then got onto the bed with the victim and after squeezing her breasts got her to place her legs on his shoulders and pushed his penis into her anus. This offending was objectively serious offending, above the mid-range for an offence pursuant to s66C(2) of the Crimes Act 1900.

Count 12

1. On the same occasion the offender slapped the victim on her face. This was also objectively serious criminal conduct falling within the mid-range for an offence pursuant to s61 of the Crimes Act 1900.

Count 13

1. On an occasion between 20 January 2018 and 23 January 2018 when the victim's mother and brother were out of the house, she was taking a nap and awoke to find the offender in her room. She could see that his pants were down and he had a condom on his penis. He made his penis go into her mouth and told her to suck it for about 1 minute until he ejaculated into the condom. This offending was of very short duration and was just below the mid-range for an offence pursuant to s66C(2) of the Crimes Act 1900. It still constituted objectively serious offending.

Count 14

1. This offence occurred between 27 January 2018 and 30 January 2018 in the early hours of the morning when the victim was asleep, and the offender came into her room. He placed his penis inside her mouth and told her to suck it. I am satisfied that this was objectively serious offending which fell within the mid-range for an offence pursuant to s66C(4) of the Crimes Act 1900.

Count 15

1. On an occasion between 1 February 2018 and 20 March 2018 the offender and victim were staying at home together. At about midnight the offender said to the victim "wait for me in bed" and she went into her parents' bed. The offender came into the bed and started touching her breasts and vagina. He placed her on top of him and rubbed his penis on the outside of her vagina. This offence was just above the mid-range for an offence pursuant to s61M(2) of the Crimes Act 1900.

Count 16

1. On the same occasion the offender had pulled the victim on top of him and told her to rub the outside of her vagina against his penis. This was objectively serious offending at the higher end of the mid-range for an offence pursuant to s61M(2) of the Crimes Act 1900.

Count 17

1. On the same occasion the offender told the victim to roll over so that she was lying on her stomach and he then pushed his penis inside her bottom. Consistent with my verdict this lasted for 10 minutes and he ejaculated inside her. He then told her to go to the bathroom to wash herself off and to go and sleep in her room in case her mother came home in the morning. This was objectively very serious offending above the mid-range for an offence pursuant to s66C(4) of the Crimes Act 1900. I reject the submission made by the offender that the offending fell in the lower end of the range given the intercourse lasted only two minutes, as not reflecting my finding on verdict.

Count 20

1. This concerned an offence on 19 March 2018 when the offender assaulted his wife AH by slapping her on the face. This fell just below the mid-range for an offence pursuant to s61 of the Crimes Act 1900 but was still objectively serious offending.

Count 21

1. This offence also occurred on 19 March 2018 when the offender slapped the victim LJ on her face. This was also just below the mid-range for an offence pursuant to s61 of the Crimes Act 1900 but given the age of the victim was still serious offending.

Aggravating Factors

1. The following are aggravating factors pursuant to s21A(2) of the CSPA:-

(2)(eb) The offence was committed in the home of the victim or any other person

1. All of the offences other than Count 6 were committed in the home of the victim where as a young girl she was entitled to feel safe. Count 6 occurred in the home of the victim's grandparents where she was sleeping. This was also a location where she was particularly entitled to feel safe. I therefore find that this was an aggravating factor in respect of each of the offences involving the victim LJ.

(2)(g) The injury, emotional harm, loss or damage caused by the offence was substantial

1. I find as outlined in her VIS, the offending conduct has affected every aspect of the life of LJ to a significant extent. As well as the emotional impact on her, she has been ostracised by her cultural community for reporting the offences and her relationships with her immediate family have also been affected. This substantial harm has clearly aggravated the offending. I reject the submission made on behalf of the offender that the VIS should be given no weight in the sentencing process as the harm caused was no more than anticipated by the legislature. The Courts have long recognised the serious harm, both physical and psychological, suffered by victims of child sex offending, and it is a relevant aggravating factor to be taken into account.

(2)(k) The offender abused a position of trust or authority in relation to the victim LJ

1. As the natural father of the victim the offender occupied a position of trust and authority and the commission of the offences constituted a gross breach of that trust. This aggravating feature applies to each of the s61M(2) offences and to Count 21. I note that it is an element of the offences pursuant to s66C(2) and s66C(4) that the victim was under the authority of the offender in respect of those offences, and is not an aggravating factor in respect of Counts 3, 9, 10, 13, 14 and 17. I reject the submission of the offender that this aggravating factor could be double-counted with the fact that the offences occurred in the home of the victim.

(2)(l) The victim was vulnerable

1. I find that the victim was a vulnerable person due to her visual impairment. She had been diagnosed with Leber's amaurosis and suffered significant visual deficits at the time of the offending conduct.

The victim AH

1. It was also an aggravating factor in respect of Count 20 that the offence occurred in the home of the victim AH pursuant to s21(2)(eb). It is not an aggravating factor that AH suffered substantial harm.

Mitigating factors

1. I find that it was a mitigating factor that the offending was not a planned or organised criminal activity pursuant to s21A(3)(b) notwithstanding that it was an ongoing course of criminal conduct perpetrated against principally a vulnerable and young victim and involved a gross breach of trust against her.

General and specific deterrence

1. General deterrence is important for sentencing for child sexual offences. Parliament has prescribed lengthy terms of imprisonment as maximum penalties for such offences which indicate the seriousness with which Parliament and the community views such offending, and the courts will impose condign punishment in appropriate cases. A clear message must be sent to the community that offending against the most vulnerable members of our community, namely, children, will not be tolerated. Specific deterrence is also important in that the offender must understand the very serious nature of the offending and the impact it has had on his own daughter.
2. As set out above, I have taken the VIS of LJ into account. The courts have long recognised the significant and deleterious impact of sexual offending on children with it's psychological and physical effects which may endure a lifetime. I reject the submission made on behalf of the offender that little weight could be placed on the VIS of LJ as the consequences of the offending outlined therein would be contemplated by the offender's criminal conduct. I therefore take the VIS into account but not so as to increase the moral culpability of the offender. I have also taken the VIS of AH into account in respect of the offence of common assault.
3. I have taken the subjective matters outlined by Dr Dilati in relation to the offender into account. He is now 41 years of age and underwent some disadvantage growing up in Iraq as he was part of a minority community which was victimised there. However since his arrival in Australia he had the opportunity to support his family by working as a security guard and establishing his own business. Although the evidence of Dr Dilati was untested, it was not opposed by the Crown or challenged by it.
4. As the offender continues to deny his offending conduct and there is no evidence of remorse, any prospect that the offender has of rehabilitation must be considered as guarded. I accept the Crown submission that he has demonstrated limited insight into his offending and has conducted victim shaming by stating to AH "but you wanted this thing". I therefore find that he has guarded prospects of rehabilitation, however his risk of recidivism must be regarded as low.
5. I take into account the maximum penalty of 10 years imprisonment for each of the offences pursuant to s61M(2) of the Crimes Act 1900, namely, Counts 1, 2, 4, 5, 6, 7, 8, 15 and 16. I also take into account that for each of those offences there is a standard non-parole period prescribed of 8 years imprisonment.
6. I take into account the maximum penalty prescribed for each of the offences in Counts 3, 9 and 13, offences of aggravated sexual intercourse on a person greater than 10 years and less than 14 years pursuant to s66C(2) of the Crimes Act 1900. The maximum penalty is 20 years imprisonment and there is a standard non-parole period prescribed of 9 years imprisonment.
7. I also take into account for Counts 14 and 17, offences of aggravated sexual intercourse on a person greater than 14 but less than 16 years of age pursuant to s66C(4) of the Crimes Act 1900, the maximum penalty prescribed is 12 years imprisonment and there is a standard non-parole period of 5 years imprisonment.
8. For the offences in Counts 12, 20 and 21 offences of common assault pursuant to s61 of the Crimes Act 1900 the maximum penalty prescribed is two years imprisonment and there is no standard non-parole period.
9. I take each of the maximum penalties, and standard non-parole periods where relevant as set out above into account as guideposts in the sentencing process.
10. I am satisfied that the threshold in s5 of the CSPA has been crossed, and no penalty other than imprisonment is warranted in the circumstances having considered all possible alternative sentences. I intend to proceed by way of an aggregate sentence pursuant to s53A of the CSPA. For the purpose of transparency in sentencing I am required to provide indicative sentences for each of the offences prior to imposing an aggregate sentence. I therefore provide the following indicative sentences:- 1. Count 1 - offence pursuant to s61M(2) of the Crimes Act 1900 - 2 years imprisonment with a non-parole period of 12 months imprisonment. 2. Count 2 - offence pursuant to s61M(2) of the Crimes Act 1900 - 2 years imprisonment with a non-parole period of 12 months imprisonment. 3. Count 3 - offence pursuant to s66C(2) of the Crimes Act 1900 - 4 years imprisonment with a non-parole period of 2 years imprisonment. 4. Count 4 - offence pursuant to s61M(2) of the Crimes Act 1900 - 2 years imprisonment with a non-parole period of 12 months imprisonment. 5. Count 5 - offence pursuant to s61M(2) of the Crimes Act 1900 - 3 years imprisonment with a non-parole period of 18 months imprisonment. 6. Count 6 - offence pursuant to s61M(2) of the Crimes Act 1900 - 2 years imprisonment with a non-parole period of 12 months imprisonment. 7. Count 7 - offence pursuant to s61M(2) of the Crimes Act 1900 - 2 years imprisonment with a non-parole period of 12 months imprisonment. 8. Count 8 - offence pursuant to s61M(2) of the Crimes Act 1900 - 3 years imprisonment with a non-parole period of 18 months imprisonment. 9. Count 9 - offence pursuant to s66C(2) of the Crimes Act 1900 - 4 years imprisonment with a non-parole period of 3 years imprisonment. 10. Count 10 - offence pursuant to s66C(2) of the Crimes Act 1900 - 3 years imprisonment with a non-parole period of 18 months imprisonment. 11. Count 11 - offence pursuant to s66C(2) of the Crimes Act 1900 - 5 years imprisonment with a non-parole period of 3 years imprisonment. 12. Count 12 - offence pursuant to s61 of the Crimes Act 1900 - 12 months imprisonment. 13. Count 13 - offence pursuant to s66C(2) of the Crimes Act 1900 - 2 years imprisonment with a non-parole period of 12 months imprisonment. 14. Count 14 - offence pursuant to s66C(4) of the Crimes Act 1900 - 4 years imprisonment with a non-parole period of 2 years imprisonment. 15. Count 15 - offence pursuant to s61M(2) of the Crimes Act 1900 - 2 years imprisonment with a non-parole period of 12 months imprisonment. 16. Count 16 - offence pursuant to s61M(2) of the Crimes Act 1900 - 3 years imprisonment with a non-parole period of 18 months imprisonment. 17. Count 17 - offence pursuant to s66C(4) of the Crimes Act 1900 - 5 years imprisonment with a non-parole period of 3 years imprisonment. 18. Count 20 - offence pursuant to s61 of the Crimes Act 1900 - 12 months imprisonment. 19. Count 21 - offence pursuant to s61 of the Crimes Act 1900 - 12 months imprisonment.
11. In respect of the non-parole periods set, I note that for each offence the non-parole period is below the standard non-parole period prescribed. This is a result of the continuing nature of the offending conduct and the accumulation that will be involved on sentencing by way of an aggregating sentence pursuant to s53A of the CSPA.
12. In arriving at an aggregate sentence the principles of totality and proportionality must be applied. The principle of totality was described by Howie J in R v Cahyadi [2007] NSWCCA 1 at [27] as follows: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. 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 reflect the criminality of both."
13. Applying those principles here, the totality of the criminality involved warrant a head sentence of 12 years imprisonment. Given the impact of the COVID-19 pandemic on the prison population and the fact that this is the offender's first time in custody, and the accumulation involved in imposing the aggregate sentence, I find special circumstances pursuant to s44(2B) of the CSPA. I therefore intend to vary the statutory ratio between head sentence and non-parole period and impose a non-parole period of 8 years. I note that the offender has been in custody for a period of 3 years and 94 days and the sentence will be backdated to 9 November 2019 (a total of 3 years and 94 days).
14. The medical conditions suffered by the offender outlined above will not make imprisonment a greater burden on the offender. It has long been established that Justice Health has a statutory obligation to provide appropriate care and treatment for prisoners - see R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 at [135].

Orders

1. I hereby make the following orders:- 1. You are convicted of the offences pursuant to s61M(2) of the Crimes Act 1900, namely, Counts 1, 2, 4, 5, 6, 7, 8, 15 and 16 on Indictment 2. You are convicted of the offences pursuant to s66C(2) of the Crimes Act 1900, namely, Counts 3, 9, 10, 11 and 13 on the Indictment 3. You are convicted of the offences pursuant to s66C(4) of the Crimes Act 1900, namely, Counts 14 and 17 on the Indictment. 4. You are convicted of the offences pursuant to s61 of the Crimes Act 1900, namely, Counts 12, 20 and 21 on the Indictment.
2. I sentence you to an aggregate sentence pursuant to s53A of the Crimes (Sentence Procedure) Act 1999 by way of a head sentence of 12 years imprisonment.
3. The non-parole period will be 8 years imprisonment commencing on 9 November 2019 and terminating on 8 November 2027.
4. The balance of term will be a period of 4 years from 9 November 2027 until 8 November 2031.
5. Your parole eligibility date will be 8 November 2027. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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: 10 February 2023