On 16 May 2023, after a trial at Gosford lasting nearly two weeks and presided over by me, a jury found the offender guilty of sexual offences committed against his granddaughter arising from 6 separate incidents. There were 12 counts on the indictment, but some of those (counts 2, 8, 10 and 12) were alternative counts. In the event, the jury found the offender guilty on all (primary) counts on the indictment.
The offences were as follows:
One count (count 1) of sexual intercourse with the victim, a child under the age of 10 years (8 years) in circumstances of aggravation, namely that she was under the authority of the offender, contrary to s 66A(2) of the Crimes Act 1900 (NSW) (the Crown also relying upon s 80AF of the Crimes Act). For this offence, the maximum penalty is life imprisonment. The standard non-parole period is 15 years' imprisonment.
four counts (counts 3-6 (incl)) of indecent assault committed against a child then aged under the age of 16 years (in all cases, 11 years), contrary to s 61M(2) of the Crimes Act 1900 (NSW). For this offence, the maximum penalty is 10 years' imprisonment with a standard non-parole period of 8 years' imprisonment.
three counts (counts 7, 9 & 11) of aggravated sexual intercourse against the child, then above the age of 10 years but under the age of 14 years (in all cases, 12 years), contrary to s 66C(2) of the Crimes Act 1900 (NSW). For this offence, the maximum penalty is 20 years' imprisonment with a standard non-parole period of 9 years' imprisonment.
The offender is now to be sentenced. The matter had been scheduled for sentencing on 11 August 2023, but shortly before that date, the offender's Counsel and solicitor withdrew. On that date, the accused (eventually) indicated that he wished to engage alternative representation and, with the Crown's consent, an adjournment was granted. The sentencing was adjourned to 8 December 2023. Then, in late November 2023, the solicitor indicated that a new team of lawyers had been engaged and the offender would not be ready for the sentencing proceeding in December and, by consent, the proceeding was adjourned again to today.
The principles that a sentencing judge will apply following verdicts of guilt by a jury were recently conveniently re-stated by Payne JA (when sitting in the Common Law Division) in R v Lauren Cranston [2023] NSWSC 454 at [4], which I respectfully adopt. His Honour observed (citations omitted):
"(1) A sentencing judge has a duty to make, as far as possible, findings of fact relevant to the issues that will inform the sentence …;
(2) Sometimes, however, it may be impossible for the sentencer to resolve a given factual question in a way that tends to either increase or decrease the sentence. In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found ….;
(3) The sentencing judge is not constrained to matters formally proved or admitted by one or other of the parties during the sentencing hearing ….;
(4) The Court is not bound to accept one party's view of the facts simply because that view is uncontradicted by any other party …. Sometimes, a party's uncontradicted interpretation of the facts may be rejected because it is implausible …;
(5) If a party at sentencing seeks to rely on a particular fact, that party has the onus of proving the fact in question: …. There is, however, no general joinder of issue in sentencing and, unlike at the trial, no generalised onus of proof: ….
(6) If the prosecution seeks to rely on a fact, they must prove it beyond reasonable doubt. If the offender seeks to rely on a fact, the standard of proof is on the balance of probabilities ….;
(7) After a jury returns a verdict of guilty, the sentencer is constrained to making findings of fact that are consistent with the jury's verdict ….;
(8) A sentencer cannot know, in many cases, exactly what facts the jury found or what evidence they accepted. The sentencer is constrained by a verdict only when that verdict, by necessary implication, reveals that the jury accepted particular evidence or resolved facts in a particular way ….;
(9) Within this constraint, the sentencer can make findings as they see fit …. There is no requirement to accept all of the Crown's case as put to the jury: …. Nor is the judge required to take a view of the facts most favourable to the offender: …."
[2]
The facts
The jury's verdicts constituted an emphatic acceptance of the victim's credibility and reliability, both of which had been vigorously challenged by and on behalf of the offender; that is, by the offender himself, his wife and a number of the victim's cousins.
The following factual findings are substantially based upon the victim's evidence. I note that there was no real issue at trial that if the incidents occurred when the victim had said that they occurred that she fell within the relevant age category for some of the offences.
As at trial, the victim and the names of family members, including cousins, have been anonymised.
[3]
Count 1
Between 1 January and 1 August 2015, the victim was staying at the Offender's house at Umina Beach and was playing with all of the [redacted] cousins, all of her E cousins and also Eli and Isaac Green, who she described as 'cousins', playing PlayStation in TJ's bedroom. This date range was identified by reference to an incident involving an accusation about her sister (KCJ) being 'touched' by their cousin, TJ around the same date. She recalled that KCJ was 6 or 7 years old at the time. According to the family tree (Exhibit A in the trial), this incident would have been in late 2014 or 2015. This assisted the victim to identify that she (who was about 2 years older than KCJ) was 9 years of age at the time of this incident.
The victim and one or her cousins, TE, were interrupted by the Offender who asked her and TE to 'come here'. This was during the daytime. The offender led the both of them towards his bedroom. They both had their backs to the bedroom door, with the Offender standing in front of them. She witnessed the Offender touching then digitally penetrating TE's vagina whilst she stood watching.
The Offender then pulled her own pants and underwear down to around her ankles, before rubbing her vagina and thereafter putting his fingers inside her vagina. The victim said, and I accept, that she told the offender to stop. This was the conduct that sustained the element of sexual intercourse for charge 1. Then she heard a knock on the door, and recalled the Offender telling her to put her pants and underwear back on.
Consistent with the jury's verdict, I accept the Crown's submission that the offending occurred whilst the victim was under the Offender's authority in circumstances which included that the complainant was 8 years old at the time; that the incident occurred in the Accused's home and the evidence of the victim's mother (KC) about her occasionally leaving her children, including the victim, with the offender and his wife.
[4]
Counts 3 & 4
Both of these counts concerned offending which occurred more or less at the same time, as part of what was described at trial as the 'second incident'.
In March 2016, the victim's parents separated. Her father eventually moved in with the Offender and his mother (EJ) at the latter's place at Umina Beach. In and from 2017, the victim and her siblings would sometimes visit their father and stay overnight at the Offender's place at Umina Beach.
In 2018, the victim was at the level of Year 6 at [redacted] Primary School. The victim said she was not talking to her own mum at the time of the first two incidents, so was living with her father for a few days, before returning to her mum's place to stay and thereafter going back to stay with her dad.
The victim's father and paternal grandmother (EJ) were both at work. During the daytime the victim went into the ensuite to the Offender's bedroom. The evidence at trial was that although there were two bathrooms in the place, only one of them, the ensuite bathroom adjacent to the offender's bedroom, had a functioning shower. Entry through the offender's bedroom was the only way the victim could access the shower. It was unclear whether she actually had a shower. Be that as it may, as she came out after the bathroom, the Offender grabbed hold of her and pushed her onto the bed, with her lying on her back. She was wearing a bra and underwear. The Offender was wearing a sarong, but that was left open, with his penis exposed. After rubbing her on her bottom, the offender rubbed her on the vagina on the outside of her underwear for maybe 5 minutes or less.
At or about the same time, the Offender put his hand underneath her bra and rubbed her left breast in the middle for maybe 8 seconds or less. The victim was crying as this occurred and the Offender said to her "Don't tell dad". The offender stopped and the victim walked out of the room.
[5]
Counts 5 & 6
The third incident occurred about two months after the second incident. The third incident gave rise to counts 5 and 6. The victim was again in the Offender's bedroom. This was about the second time she had been suspended from school during the year (out of what she recalled were about 5 occasions) although, as indicated (Exhibit M at the trial) suggests that recollection may be inaccurate. Only she and the Offender were home at the time.
It was daytime. The Offender pushed the victim on to the bed. He grabbed her breasts with his right hand on the outside of her clothes. This was the conduct constituting the indecent assault for count 5.
Simultaneously, the Offender's left hand moved up outside her shorts to her vagina and he rubbed her vagina, on the outside of the shorts, for about 30 seconds. After the Offender had stopped, he said to her 'Don't tell dad'. The victim walked out of the bedroom, crying.
[6]
Count 7
The victim recalled that the fourth incident occurred months later. The victim was due to start High School in 2019, and she recalled that it occurred before High School started. She was aged 12 at the time. She was visiting her dad, who was not there at this particular time. The victim was sitting on the middle of several black leather lounges in the lounge room at the Offender's house.
The victim was home alone with the Offender. It was night-time. The Offender had come from his bedroom, and the victim had seen him enter into the lounge room and walk up to her. He was wearing shorts and no t-shirt. The victim was wearing a black denim skirt. He pulled her underwear and pants down so that they were at the bottom of her feet.
The victim then got on top of her. She was laying back. He inserted his penis into her vagina and they had sex for a few minutes. He was holding the back of the lounge, with his shorts hanging at the bottom of his feet. She was crying throughout the episode. He said words to the effect "Don't tell dad".
As she went into the bathroom after the sex, she noticed that when she was urinating there was bleeding and she also felt her insides were hurting. Her vagina was sore until the next day.
[7]
Count 9
On 12 March 2019, the victim (then aged 12) was suspended from Brisbane Water Secondary school. She was due to return on 9 April. After this period of suspension was served, an arrangement was made for her to spend some time at the PCYC at a park near Umina Beach. The arrangement involved PCYC officers collecting her from the Offender's house in the morning.
During the period that she spent at the PCYC, she was at the Offender's house, getting ready in the morning to attend the PCYC for a day. Her grandmother and father were at work. She was at home alone with the Offender. The victim walked into the Offender's bedroom. She saw him lying on the bed with his legs open, wearing his blue and white sarong, but with his penis exposed. She ignored this sight and walked into the bathroom to shower, to get ready for the day ahead.
When she came out of the bathroom, the Offender was standing outside. He grabbed hold of her chest and pushed her on to the bed. He held his left hand over her and put his right hand up her sports uniform shorts, inserting his fingers inside her vagina, moving them in and out for about 5 minutes. She asked the Offender to stop, which he did; saying again 'Don't tell your father'.
She went into the bedroom occupied by her father and was crying as she waited to be collected by the PCYC officers to collect her.
[8]
Count 11
The sixth and final incident arose when the victim was in the Offender's house in June 2019. She identified that it was June since she recalled that this was when she started to stay and (she thought) intended to live with her father again. In that month, she was above the age of 10 but below the age of 14, being 12 years of age. She was home alone with the Offender again, situated in the room occupied by her father. This was in the afternoon. Her father was walking the dog whilst her grandmother was working.
The Offender asked the victim to go into his bedroom, where she was sitting on the bed on her phone. She did so and he pushed her on to the bed by her shoulder. She recalled him taking his sarong off and ripping her footy shorts and underwear off before getting on top of her and inserting his penis into her vagina. He held her arms behind her head and thrusted his penis inside her vagina, in and out, for about 10 minutes. She said, and I accept, that she said stop, but the offender did not listen. She froze and cried.
After the sex ended, she went into the bathroom and cried. She thought about calling her dad, but did not do so as she was too scared to do so. Her vagina felt swollen and bruised for about a week.
Consistently with the jury's verdicts on counts 7, 9 & 11, I find that for each of those counts, the offending on each count occurred in circumstances where the victim was under the offender's authority; those circumstances including the complainant's age, being 12, that the accused was her grandfather and that he and his wife were, partly because of the situation concerning the complainant's own father, the 'responsible' adults in the house. The Crown also emphasised the offender's wife's agreement with the proposition that when the father was not around, she and, by extension also the Offender, took responsibility to ensure that the complainant was safe.
[9]
Consideration of the objective gravity of the offending and aggravating factors
For count 1, the conduct involved digital penetration. The victim was 8 years and 9 months of age. The offender was aged 59. Even at a young age, the victim told him to stop. It was a knock on the door that played a role in the cessation of the offending. This was a serious instance of offending. This offending was aggravated by the circumstances of its occurring in the presence of another child (s 21A(2)(ea)) and occurring in the offender's home (s 21A(2)(eb)).
For counts 3-6, the Crown did not differentiate the objective seriousness of each of the offences, and contended that the offending fell just below the mid-range in all cases. The offender contended that for each count, the offending fell in the low range. In each case, the victim was aged 11 and the offender was either 62 or 63. There were differences between the offending which should be acknowledged.
As a general proposition the offender appeared to submit that the briefer the duration of the assault, the less serious it is. Although there is some authority to support it, with respect, I think some circumspection is required; given that it is often the case for assaults of this kind that they are brief, so as to enable the offender to reduce the risk of detection; and, regardless of how brief the offending may be, it can nonetheless, notoriously have long-lasting effects (R v Lau [2022] NSWCCA 131 at [82]). The circumstances concerning count 1, that I have referred to, demonstrate the point.
For count 3 there was no skin to skin contact. The period of touching was not insubstantial. For count 4, the skin to skin touching occurred on the victim's left breast, for a very short period. For count 5, the touching of the victim's breasts occurred on the outside of the victim's clothes. For count 6, the touching of the victim's vagina also occurred on the outside of the victim's clothes. It was of short duration.
Noting those differences, my assessment of where this offending falls on the spectrum of seriousness for each of counts 3-6 (incl), is that it fell below the middle of the range of objective gravity.
I accept the Crown's submission that statutory factors of aggravation for these counts 3-6 (incl) include that the offending occurred in the offender's home. The last aggravating factor is not lessened by the circumstance that the victim either wanted to be at the offender's home or because of the circumstance of the victim's father, also resident at the home, being out at work. I agree, further that the offender was in a position of trust and/or authority in relation to the victim.
For count 7, there was a very significant age gap. The penile-vaginal intercourse caused the victim to bleed and suffer soreness to her vagina for around a day. Although there was no indication of ejaculation, this was a very serious instance of offending and it was aggravated by the offending occurring in the offender's home.
For count 9, again, there was a very significant age gap. The sexual intercourse featured digital penetration for about 5 minutes. This offending was serious. It was aggravated by the offending occurring in the offender's home.
For count 11, the objective circumstances were similar to count 7. There was a significant age gap. The sexual intercourse featured penile penetration over 10 minutes. Although there was no ejaculation, this was a very serious instance of offending. It was aggravated by its occurrence in the offender's home.
[10]
Some additional aggravating circumstances
In RH v R [2019] NSWCCA 64, Schmidt J (Hoeben CJ at CL and Adamson J - as her Honour then was - agreeing) at [48]-[49] found that serial sexual offences committed by a mother against her daughter engaged the aggravating circumstance of the victim's being vulnerable and, further, her Honour distinguished that circumstance from other aggravating factors (such as abuse of position of authority of breach of trust, and offending in the family home). By analogy, I find that the victim here was 'vulnerable' and that this was a discrete aggravating factor beyond the factors of abuse of authority or the offending occurring in the home.
In Baker v R [2022] NSWCCA 195 at [59], Adamson J (as her Honour then was, N Adams J agreeing), regarded it as being common ground between the parties in that case that a threat by an offender to a victim can be taken into account as an aggravating factor. When I raised this with the parties, Mr Crown preferred to characterise this circumstance as going to the objective gravity of the offending. However, this circumstance is classified, for counts 3-9, I find that the offender's statement "don't tell your dad (or father)" did amount to a threat; even if the precise consequences of the victim not complying with the demand were not spelled out. It is enough, in this respect, that it was indicated to the victim that an adverse consequence would follow from non-compliance: Baker v R at [60]-[61]. In this case, the victim would foreseeably or likely have been dissuaded or deterred from complaining about the conduct by reason of the circumstances of her attendance in the offender's home being not entirely voluntary, and her problematic relationship to her father (a matter which the offender knew about). In this regard I reject the submission advanced for the offender that the statements amounted only to an (innocent) 'plea' to her when they were made.
[11]
Harm to victim
The victim did not give evidence in the sentencing hearing, nor provided a Victim Impact Statement
In Culbert v R [2021] NSWCCA 38 Adamson J (with whom R A Hulme J agreed) wrote at [115]:
"It has become a matter of common experience in this Court that the adverse psychological effects of sexual abuse on children tend to be long-lasting. …….. The typical effects, as appear in judgments of this Court, include difficulties with intimate relationships, self-loathing, guilt, self-harm and a tendency to self-medicate."
Earlier, in DBW v R [2007] NSWCCA 236 Spigelman CJ (at [40]) observed that where there was no positive evidence that a young victim of a sexual offence had suffered psychological harm by the time of sentencing, it was open to the Court to proceed on the basis that there was a substantial risk of emotional harm in the future.
Nevertheless, for the aggravating factor in s 21A(2)(g) to be engaged, the harm to the victim has to be extraordinary or beyond that which would ordinarily result from such serious offending (GL v R [2022] NSWCCA 202 at [64]).
I wish to pay particular tribute to the victim. She has shown bravery and fortitude in initially bringing her complaints to the attention of police, undergoing the processes of criminal justice, including being subjected to attacks on her credibility and reliability; featuring the suggestion that she lied about her allegations against the offender by members of her extended family. She has endured the most unfortunate experience of being not only disbelieved by cousins and her own paternal grandmother, but the added indignity, or affront, of effectively being cut-off as a member of her extended family and has generally been ostracised. For the victim and her family, loyalty was very important and for some family members, the victim broke a moral code. I find that her delayed complaint about the involvement of TE in connection with the first incident was the product of her struggling with the dilemma of adherence to that code. She has, fortunately, for her, received the care and support of her mother and maternal grandmother since raising complaints; and those individuals are also to be commended.
[12]
Age and background
From early 2015 to the middle of 2019, the offender was aged between 58 and 62 years of age. The offender is now 67 years of age.
The sentencing assessment report of a community corrections officer partly dealt with his background but only in a sketchy way. It is striking that he had been married to his wife for a period of nearly 50 years. They had three children and many grandchildren.
[13]
Remorse or contrition
The offender did not give evidence at trial, but he did participate in an ERISP which was to some extent used against him at trial. The content of that interview not only comprised denials of the offending, but also had an air of mockery about them, such as when he asserted that "she (ie the victim) has got problems".
He did not give evidence in this sentencing hearing.
The community corrections officer noted that, as was his entitlement, he maintained his innocence in the face of the jury's verdicts. More than this, however, the officer reported the offender's belief that the victim was "evil" and had "ruined his life". He imputed to the victim a motive to achieve revenge against him for supporting another family member who was convicted of a sexual assault on the victim's sister. This proposition was not put to the victim at the trial. There is not a skerrick of remorse or contrition or any sense of compassion or empathy for the victim.
His position is not worsened by the absence of contrition of remorse, but the absence of those matters removes a factor which might have been relied upon him in mitigation, in terms of elevating his rehabilitation prospects and lessening the force to be given to specific deterrence.
[14]
Lack of antecedents and prior good character
At the trial, the offender relied upon the lack of any relevant or material criminal history and prior good character. The latter submission was supported from evidence of a family member who was clearly partial to the offender's cause.
In this sentencing hearing, written character references were given by the offender's wife and several (3) of his grandchildren and (2) cousins, which I have read. Notably the wife did not refer to his character; but assuredly, the grandchildren and friends spoke positively of his character. It is true, of course, that for virtually all of his adult life, he has led a blameless life.
By s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the 'CSP Act'), the Court is enjoined against taking into account a lack of antecedents and good character as mitigating factors if the Court is satisfied that either factor assisted the offender to commit his offending. The Court of Criminal Appeal recently referred to this provision in Bhatia v R [2023] NSWCCA 12. There, it was observed that the Crown carried the onus of discharging an evidential onus of a connection between the offender's good character or lack of convictions and the offender having access to the complainant. In particular, in that case, it was found that the victim's father gave no evidence he had assessed the offender's character or history. No other evidence suggested that the offender actively used his good character or befriended the family to gain access to the victim.
In this case, there was no evidence from the victim's mother (or father). To the contrary, the evidence was such that the offender did not engage in any steps to try to procure the proximity of the victim to him.
However, the circumstance that the offender engaged in repeated sexual abuse of the victim over several years disentitles him from a finding of good character or any suggestion that the offences were isolated. They underscored the victim's vulnerability.
[15]
Prospects of rehabilitation and likelihood of re-offending
The community corrections officer was unable to contact the offender's wife, who gave evidence in support of the offender at trial. Nevertheless, the officer opined that he appeared to have family support to assist with his reintegration back into the community. The offender has been on a disability support pension since 2014. Upon his release it is difficult to conceive of his having any prospect of gainful occupation.
It was disturbing to read the observation of the community corrections officer that the offender believed that the onus was on a child victim (of sexual misconduct) to reject inappropriate conduct. If that attitude was bad enough, according to the officer, the offender had no understanding whether children could legally consent to sexual activity with adults.
It was disturbing to read that the offender had refrained from taking medication for his heart condition for the apparent motive of hastening his death, and a perceived risk that he may self-harm, although I will return to that particular matter later in these remarks.
In one of the written references relied upon, the cousins or friends expressly indicated their support to him upon release and undoubtedly the three grandchildren who prepared a testimonial will continue to support him. I accept that evidence. I note further that a large number of his extended family came to Court at this hearing in support of the offender.
His rehabilitation prospects are reasonable.
The offender was assessed by a CSNSW psychologist, utilising the STATIC-99Rv2 metric, as being in the "very low" risk for sexual recidivism. More generally, he was identified at being at a "T3/Low" risk of reoffending according to the LSI-R scale. His general health condition is such that irrespective of his attitudes, the likelihood of the offender re-offending is low.
As an aside his Counsel observed that it was conceivably the case that upon his release the offender will be deported. That prospect was raised in support of the notion that the consideration of the protection of the community would not loom large in the sentencing exercise.
[16]
Hardship
The offender indicated a variety of ailments and health issues which had also been relied upon at trial. In particular, in 2013, he had heart surgery. The Crown did not contest, for sentencing purposes, that the offender has a heart condition.
In Muldrock v R (2011) 244 CLR 120, the High Court (at [9]) noted that an offender's physical condition at the time of sentence may be relevant, and mitigating, in several senses. This included the circumstance that the offender's health condition would make imprisonment significantly harder for him. This might, for example, be manifested by a risk of his missing his medication and even, possibly, an inability to defend himself in prison, given his likely status as an inmate in need of protection (given the nature of the offending), but also, more generally, given the prospect of a very lengthy custodial sentence, what remaining years of life he has will be unlikely to be enjoyed in the community. Secondly, where there is proof that incarceration would have a significantly adverse effect on the victim's health, this may also be mitigating.
The prospect of his missing medication would be mute in view of the apparent circumstance that the offender was deliberately refraining from taking it. However, the offender's Counsel, albeit from the Bar Table, submitted that recently he had reverted to taking his medication. Nevertheless, there is some evidence from the community corrections officer of depression.
In their written testimonials, the offender's wife and at least three of his grandchildren commented upon what they saw as his apparent physical and mental decline.
These matters may have the effect of moderating the salience of specific deterrence to a degree. Nevertheless, these matters in mitigation should not be permitted to swamp other considerations referable to the seriousness of his offending - his ill-health, which I note began to manifest itself before the offending occurred, accorded him no licence to commit his crimes.
[17]
Instinctive synthesis
I take into account the maximum penalties and statutory non-parole periods as statutory guideposts. The maximum penalties (especially for counts 1, 7, 9 & 11) represent some of the stiffest sentences of imprisonment in the statute books in this State, which is a manifest signal about the extreme seriousness with which Parliament views offending of the subject kind. In relation to the offences (counts 3-6 (incl)), observations have often been made about the desirability of the length of the standard non-parole period relative to the maximum penalty, but that is not a matter that a sentencing judge can diminish in an illegitimate way. As to the standard non-parole periods more generally, in light of Muldrock, the length of those periods is not to be given determinative significance.
I also take into account all of the considerations in s 3A of the CSP Act. Aside from being inherently serious, there are, as I have indicated, several statutory aggravating factors to most of the offences. For offending of this kind, plainly general deterrence, retribution, denunciation and making the offender accountable for the harm the offender has caused the victim are of the utmost significance. Given his age and ailments, specific deterrence and the protection of the community are of lesser force than they might otherwise have been. The need to rehabilitate him is a subsidiary consideration.
There was no serious dispute that the threshold in s 5(1) of the CSP Act has been crossed and the offender's Counsel's submissions (with reference to special circumstances) were premised upon the application of that sentencing option.
[18]
Totality
Because of the multiple charges, I must apply the totality principle. I have noted that there were six incidents giving rise to the offending and that in respect to the second and third incidents, there were multiple offences occurring within the same incidents. This gives rise to the requirement for substantial concurrency, whilst recognising that in respect to counts 3 and 4, and 5 and 6, there were different acts of indecency against the victim, which requires an element of accumulation to comprehend the overall criminality. For the balance of the counts, occurring at different dates, there is an additional requirement for accumulation.
Ultimately, however, I must impose an aggregate sentence reflecting my assessment of a term of imprisonment that comprises all of his criminality. This can be a challenge where there are individual sentences of imprisonment of substantial length; particularly for an aged offender: see for example (albeit for a different type of offending) Davidson v R [2022] NSWCCA 153 where, at [309], N Adams J (Adamson J agreeing) observed a tension between two relevant considerations: on the one hand, each year in custody weighs heavier on a prisoner, whilst on the other hand, it is important to avoid the impression that a discount for multiple offending is being given in such cases. It is always a question of proportionality and whether or not a sentence is 'crushing' is not dependent on the offender's subjective views. At [330] her Honour said:
"In a factual scenario that arises more commonly in this Court, a paedophile who sexually assaults numerous children on numerous occasions will, after the application of the totality principle, usually receive a relatively short cumulative increment for each additional sexual assault. This is the case even though, unlike the present case, the offender has committed numerous discrete acts in sexually assaulting each child".
This is not a case that involves multiple victims. But it does involve multiple highly serious offences committed against a single victim ranging over a period of 4 years; although for all but one of those offences, the offending occurred within the space of 18 months. At [332] N Adams J observed:
"In Regina v Wheeler [2000] NSWCCA 34 ("Wheeler") from which the quote in Knight is taken is not so commonly cited. In Wheeler, Sully J (with whom Carruthers J agreed) was considering an appeal by an offender charged with multiple serious armed robberies committed whilst on conditional liberty with a previous criminal record. In that context, his Honour referred to the need to apply the totality principle (at [35]) and then observed the following at 36-37:
"The countervailing factor, no less legitimate, is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.
It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.""
The indicative sentences are:
Count 1: 6 years imprisonment (NPP 3 years and 7 months)
Count 3: 2 years' and 4 months imprisonment (NPP 1 year and 5 months)
Count 4: 2 years' imprisonment (NPP 1 year and 2 months)
Count 5: 2 years' imprisonment (NPP 1 year and 2 months)
Count 6: 2 years and 3 months' imprisonment (NPP 1 year and 4 months)
Count 7: 5 years' imprisonment (NPP 3 years)
Count 9: 3 years' imprisonment (NPP 2 years and 7 months)
Count 11: 5 years and 6 months' imprisonment (NPP 3 years and 3 months)
[19]
Prior custody and bail conditions
The offender has spent a significant period in custody attributable to the offences.
The offender's Counsel further submitted that the Court should also take into account onerous bail conditions. It was said that the offender had been released to bail on 23 April 2020 and was on bail until the offender was detained after the jury rendered its verdicts. This included, over a two year period, a daily reporting condition, until its variation on 31 March 2022 to require reporting only twice a week. But over that 2 year period, there was also a restrictive curfew enforcement condition, in the sense of limiting where he could go outside of the company of his wife, son or daughter. They did, however, exclude unrestricted contact with his grandchildren or cousins, five of whom have supplied written testimonials for him.
The practical effect of bail conditions was illuminated in some of the written references from the offender's wife and some of his grandchildren.
The Crown did not dispute the existence of the discretion to backdate to reflect onerous bail conditions, but argued that the conditions identified as onerous were relatively common for offences of the current kind and that what, if anything made them onerous was simply the period of time that they applied to the offender.
I do not agree that the bail conditions had the practical effect of exposing the offender to 'house arrest' or that his predicament was to be likened to that of experiencing 'quasi-custody'. I do not consider that the Court of Criminal Appeal's decision in Hoskins materially assists. Indeed, the indications at [38]-[39] suggest that the Court was somewhat sceptical as to whether the conditions in issue there truly did amount to house custody although it decided not to intervene. I accept that there were not insignificant constraints on his liberty for a long time, but not of such qualitative kind as would be assimilated to his condition had he been in actual custody. I reject the assimilation of the curfew condition as a form of house arrest. The offender could go anywhere whilst on bail, but conditionally under observation of other persons (including his wife).
[20]
Special circumstances
I consider that for a man of the offender's ill-health and his being a first time offender, special circumstances exist which justify variation of the ordinary statutory ratio.
[21]
Sentence
Mr [RJ], please stand.
You are convicted of counts 1, 3 - 6 (incl), 7, 9 and 11 on the indictment.
I impose an aggregate sentence upon you of 16 years' imprisonment commencing on 20 October 2022 and expiring on 19 October 2038. A non-parole period of 9 years and 7 months expires on 19 May 2032; after which you are eligible for release on parole.
[22]
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Decision last updated: 19 February 2024