HIS HONOUR: RKT, in the February sittings of the Armidale District Court before me, pleaded guilty to counts 1 to 7 and counts 9 to 22, inclusive. He pleaded guilty to a range of sexual offending against young girls, there being six victims in all. The offending took place in a range of years across about 18 years. These are reasons for the sentences that I am to impose on RKT today and are delivered extempore, in circumstances where I read all the material and heard the submissions of the parties earlier today. It is noted that both the legal representatives appear remotely, that RKT is before the Court, by way of AVL link from Hunter Correctional Centre and that three of the victims are being able to observe the proceedings remotely as well.
The first six offences for sentence relate to a victim, DW. Each of the offences, counts 1 to 6 inclusive, are offences of assaulting a girl and at the time of the assault committing an act of indecency. Each of those matters, at the relevant time, carried a maximum penalty of six years, with the exception of count 3, which had a maximum penalty of two years.
Count 7 on the indictment was committed against somebody that I will call AA, simply because three of the victims, who have each provided victim impact statements, shared the same initials at the time. Count 7 was an offence of having sexual intercourse without AA's consent and knowing that AA was not consenting to that sexual intercourse, in breach of the then s 61D(1) of the Crimes Act, 1900 and a maximum penalty for that offence of 10 years is provided.
The victim in relation to counts 9 to 15 inclusive I will call BB in these remarks.
Counts 9, 10, 14 and 15 are each offences that RKT assaulted BB and at the time of such assault committed an act of indecency on her, in breach of s 61E(1) of the Crimes Act and at the relevant time, the maximum penalty for those offences was six years.
Counts 11, 12 and 13, which arguably represent the most serious offending across all of the matters, are offences of having sexual intercourse with BB without her consent and knowing that she did not consent to the sexual intercourse and at the relevant time those offences carried a maximum penalty of 10 years imprisonment. At the time of all of the offending, BB was between four and five years old.
Counts 16 and 17 relate to the victim CS. They are both offences in breach of s 61E(1) of the Crimes Act, that RKT did assault CS and at the time of the assault committed an act of indecency upon her. The maximum penalties provided for those offences at the relevant time was four years imprisonment and CS was six to seven years of age at the time of the offending.
Counts 18 and 19 relate to a victim who I will call CC. There were two offences in breach of s 61E(1)(a), that RKT did assault NT, a person then under the age of 16 years, namely 11 years and at the time of the assault committed an act of indecency on CC, CC then being under the authority of RKT. For each of those matters is provided a maximum penalty of six years, at the relevant time.
Counts 20, 21 and 22, relate to a victim KS, who was either seven or for the third offence seven or eight years of age at the time of the offending. Count 20 is an offence in breach of s 61E(1)(a), that RKT, at the relevant time, did assault KS, a person then under the age of 16 years, namely seven years and at the time of the assault committed an act of indecency upon KS, KS being at the time under the authority of RKT, that carried a maximum penalty at the relevant time of six years.
Count 21 is an offence in breach of s 61E(2)(a), that RKT incited KS, a person then under the age of 16 years, namely seven years, to commit an act of indecency with him, KS being under the authority of RKT. That matter, at the relevant time, had a maximum penalty of four years imprisonment.
Count 22 is an offence in breach of s 61M(2) of the Crimes Act, that RKT did assault KS, a person then under the age of 10 years, namely seven or eight years and at the time of such an assault did commit an act of indecency upon KS. A maximum penalty of 10 years is provided in relation to that matter.
And the final count on the indictment, count 23, relates to a victim by the name of DR and that was an offence committed in breach of s 61M(2) of the Crimes Act, that is that RKT did assault DR, a person then under the age of 10 years, namely six or seven years and at the time of such assault did commit an act of indecency on DR. For that offence at the relevant time the maximum penalty of 10 years was provided.
What I propose to do is make some general comments about the objective seriousness of these matters and then with those general propositions in mind, indicate the view I have of the objective seriousness of the offending. It is well understood by courts that this kind of offending has a very traumatic effect on child victims and that affect can be understood to operate throughout the lifetimes of those victims.
The three victim impact statements that I have had regard to and will take into account to the extent permitted by legislation, principle and authority, speak very eloquently of the damage that has been caused to those particular people by the offender's sexual trespasses against them when they were very young. I will have more to say about the topic of the seriousness with which the courts and the community view this type of offending. However, I just make that comment now because the task of assessing the objective seriousness of the offending ought not in any way be seen to be a minimisation either of the seriousness of the behaviour or the particular effect on the particular victim, rather the Court is obliged to undertake a task of considering the written submissions of the parties on these points and comparing the particular piece of offending in any one case against a range that includes the worst possible offending that could be caught by the particular charge.
Each of the offences were committed when the victims of the offences were of tender years. As I have indicated, DW was first offended against when she was six years old and was last offended against when she was eight years old. AA was offended upon at some time between the ages of four and nine years of age. BB was offended against when she was either four or five years old. CS was offended against when she was six or seven years of age. CC was offended against when she was 11 years of age. KS was offended against when she was either seven or eight and DR was six or seven years old.
Some of the offences were committed in the homes of the victims and that will serve to aggravate the objective seriousness of the offending. I accept the Crown's submission that the objective seriousness of the offending is aggravated, the younger the age of the victim, relative to the age range provided by the offence.
In the matters in which it is averred that RKT had the victim under his authority, I will not take into account any implied breach of trust but in the other offences, either because of family relationships or close relationships with either parents or uncles of the various victims, RKT was permitted access and had the trust of both the victims and their relatives reposed in him. He abused that trust and where that is not an element of the offence, by way of being under the authority, that is an aggravating circumstance.
There are mitigating circumstances, in terms of the pleas of guilty and I am not able to find that the matters were particularly planned and I am prepared to characterise most of them as being opportunistic.
The offender's moral culpability is reduced, in relation to counts 1 to 6 because he was himself a juvenile, somewhere between the age of 14 to 16 years at the time of the commission of those offences. Whilst that will operate to reduce his culpability, I accept the Crown's submission that the offending against DW increased in seriousness and type from the first time that RKT commenced to offend against her, until the last offence.
What I propose to do is deal with the facts of these matters victim by victim and then form characterisations of objective seriousness before I move on. It is a more efficient way of dealing with each set of offences when I am delivering reasons extempore.
DW was born on 6 June 1968. In 1974 to 1975, when she was six years old, she was at the offender's residence with her mother. The offender was present. Whilst her mother was elsewhere in the house, the victim was with the offender in his bedroom. The victim, who was wearing a dress, was standing inside the room by the door, next to the bed, whilst the offender was seated on the bed. The offender walked over to the victim, placed his hand under her dress and ran his finger up her side and then beneath her underwear. He moved his finger down the victim's vagina and commenced rubbing his finger in a circular motion around the external lips of her vagina for about four to five seconds. The victim then left the room.
When she was about seven or eight, she was again at the residence of the offender. She was again alone with the offender in his bedroom. He picked her up and placed her on his double bed, with her legs hanging over the side. The offender stood between her and rubbed one of his hands on the inside of her leg. He then moved his hand under her shorts and then inside her underwear. He used one of his fingers to touch the outside of the victim's vagina and separate the inner and outer lips of the vagina. The victim jumped off the bed and left the room.
The facts in relation to count 3 are that when the victim was eight, she attended the offender's home, during the daytime. She and the offender were alone together again in the offender's bedroom. The victim was sitting on the end of the bed, whilst the offender lay down on the bed. He then began stroking his penis outside of his clothing. He lifted his hand and the victim could see his fly was undone and the skin of his penis was visible. The offender continued to rub his penis from the outside of his clothing.
The facts for count 4 are that the offender then leant forward and took hold of the hand of the victim, he forced her hand down towards his groin area. The victim's hand touched the penis of the offender. The offender began rubbing the victim's hand against his penis for about five seconds, before the victim left.
The facts in relation to count 5 are that about a week after the events that I have just described, the victim again attended the residence of the offender with her mother. The victim was alone with the offender in his bedroom. The offender was lying on the bed and the victim was sitting on the end of the bed with her legs hanging over the side. The offender took hold of the victim's arm and pulled her towards him so that they were lying next to each other on the bed. The offender took hold of the right hand of the victim and pulled her closer. The offender had his penis exposed, it was flaccid. The offender moved the hand of the complainant onto his penis. The offender used the complainant's hand to stroke his penis for about two to three seconds before the complainant pulled away.
The facts for count 6, which is a further count of indecent assault, would amount to much greater criminality if the conduct occurred today and would be a very different charge. I am obliged not to have regard to the way the offence would be caught by current legislation, when I sentence the offender.
The offender took hold of his penis in his hand. With his other hand, he grabbed the back of the victim's head. He gripped her hair and forced her face towards his penis. The offender forced his penis into the mouth of the victim. The victim tried to pull away but the offender kept hold of her head, preventing her from doing so. The offender forced the victim's head harder so that his penis went further into her mouth. This lasted for about a minute before the complainant turned her head to the side and the offender's penis came out of her mouth. She ran from the room.
Taking into account the relative levels of invasion of the child, where there was skin to skin contact or not and the other items that I have said more generally I am taking into account in assaying the objective seriousness of the matters, in relation to counts 1, 2 and 3, I form the view that the objective seriousness of the matters is below the midrange but not into the low range of objective seriousness.
Counts 4 and 5, given the relatively short periods of time involved, notwithstanding the conduct asserted, the offending, to my view, is at the midrange of objective seriousness of the offending.
And count 6 is above the midrange of objective seriousness, given the level of invasion and the length of time that was involved in that matter but does not reach the high range of objective seriousness.
AA was born on 19 April 1978. Between 1982 and 1988, when the victim was between the ages of four and nine years old, the victim and her family attended the residence of the offender. The victim walked into the lounge room and saw the offender sitting on the lounge. Everyone else was out the back of the premises. The offender signalled to AA to come and sit on his lap, which she did. The offender put one arm around her stomach and quickly put his other hand under her skirt and into her underwear. The offender whispered "Sh sh", into the ear of AA. The offender placed his fingers onto the area of the victim's clitoris and rubbed it.
In taking into account the opportunism, the brazenness of this offence when AA's family were in the premises but out in the backyard and the skin on skin contact and the nature of it, I assess count 7 in the midrange of objective seriousness, taking into account the comments made earlier.
Moving to the counts that relate to BB. BB was born on 27 July 2018. In 1984 to 1985, when the victim was four years of age, she was at the residence of the offender. The offender called the victim into his bedroom. He lay the victim down on the bed and told her he wanted to show her something.
The facts, in relation to count 9, are that the offender put his hand up the shirt of the victim and rubbed all around her chest area. He left one hand up the shirt of the victim and put his other hand down her shorts and underneath her underwear.
The facts, in relation to count 10, are that the offender then rubbed his hand against the victim's vagina.
The facts, in relation to count 11, are that the offender inserted his fingers inside AA's vagina, causing her immediate pain. As he had his fingers in AA's vagina, he told the victim:
"You have to be quiet. If you tell anyone, they will say you are lying. If you tell anyone, your mum and dad will give you away. They will give you away to a family that will be nasty to you because you will be a liar".
Understandably, the victim was terrified by what the offender had told her and did not tell anyone what had occurred. When she went to the toilet, following the assault, she was bleeding from her vagina.
The facts, in relation to count 12 and count 13, relate to a repetition of the same conduct, two days later and then two days later again.
On all three occasions, the offender put the victim on his bed, rubbed her chest and inserted his fingers into her vagina. Each time the victim was caused a lot of pain and it caused her, on each occasion, to bleed from her vagina. The offender reinforced the same threats each time, preventing her from saying anything.
The facts in relation to the final offending against BB are counts 14 and 15, which are each committed on the same day, approximately four days after count 13. The offender was travelling from the house to the local hotel and back. The offender wanted the victim to go with him. BB tried to refuse but her grandmother made her accompany the offender. The victim got into the offender's panel van. The van had two bucket seats, with a console in between. The offender made BB sit on the console, rather than in her own seat.
On the drive to the hotel, which is a distance of about a kilometre, the offender repeatedly rubbed the complainant on the skin on the outside of her vagina. He told the victim to do as he said or he would tell the victim's grandmother (Count 14). They arrived at the hotel and the offender went inside for a time and then came back out.
The facts in relation to count 15 are that as they were driving back, the offender again continuously rubbed the victim on the skin on her vagina.
The above mentioned incidents represent the first times that the offender assaulted the victim, although the assaults continued throughout the year, with the offender touching the victim's vagina whenever the chance arose. In taking that material into account, while I will not punish the offender for offences which are not brought against him, both the range of matters that he has pleaded guilty to on the indictment and that additional material, assists me to punish the offender, in the context of these not being isolated incidents but amongst a course of conduct.
In assessing the objective seriousness of the offending against BB, in relation to the offending at count 9, given the relative brevity of that offence and the limited nature of the touching but taking into account skin on skin contact, I find the objective seriousness of that matter is in the lower range of objective seriousness. In terms of the offender then rubbing his hand against BB's vagina, for the purposes of count 10, that offending is at the midpoint of objective seriousness.
In most cases I ought to indicate that RKT's solicitor, Mr Collins, has accurately made submissions about the objective seriousness. On most occasions, I have been prepared to adopt his characterisation.
In relation to counts 11 to 13, he submitted that those offences were at the midrange of objective seriousness, taking into account that the penetration that constituted sexual intercourse was digital, rather than penile. That will often be the case but here, in circumstances where the digital penetration first resulted in obvious and immediate pain, second, on each occasion, resulted in bleeding and third, on each occasion was aggravated by significantly manipulative threatening conduct, I find the objective seriousness of that offending to be above the midrange, although it does not achieve the high range of objective seriousness.
It would be impossible to imagine how that kind of offending, against a young child, could not continue to affect her, as it clearly has, throughout her life.
Counts 14 and 15, which involve indecent assaults to and from the hotel, given the length of the time that the offender rubbed the victim's vaginal area and given that a second offence was committed close in time to the first and occasioned another threat to be made to BB, those matters fall to the midrange of objective seriousness.
Moving then to the offences that relate to CS. CS was born on 13 May 2080. In 1986 or 1987, when she was either six or seven, she was in a car travelling with the offender, her father, her uncle, her younger brother and another victim, who I will come to, whose name is KS.
The facts in relation to count 16 are that it was night-time and they were in the car close to Warialda Rail. The offender was seated in the back, next to the victim. While the vehicle was in motion, the offender put his left arm around the left shoulder of the victim, CS and slid his hand down into her shorts and underpants. He stroked the skin on the outside of her vagina.
The facts, in relation to count 17, are that a short time later, the offender moved CS away from him and moved KS to where CS had been sitting. A short time later he moved them back around and, again using the same method, slid his left hand into CS's underpants and again touched her vagina, in the same way. A short time later, they arrived at their destination and the offender stopped what he was doing.
These, similarly, are matters that invoke a breach of trust and I find, given the skin on skin contact and the apparent length of the offending, that the objective seriousness of the offending, against both offences, against CS, achieved the midrange of objective seriousness.
Now I am going to come to a matter where the victim is identified as CC. CC was born on 14 December 1975. In the summer of 1986, she was aged either 10 or 11. She was at her own home at an address in East Tamworth. The offender and his mother attended the victim's address, to visit the family. During the night, all of the adults were outside and the victim was in the lounge room, with one of her young friends. The offender entered the lounge room and told the victim to sit on his lap.
The facts, in relation to count 18, which is an indecent assault, while CC was under the authority of RKT, are that the victim sat on the offender's lap. A short time later, the victim attempted to get up and return to her friend to play with her, however, the offender grabbed her by the hips and sat her back down so that her back was against his chest. He had his left arm around the left shoulder of CC, across her chest, to her right shoulder, holding her in place. The offender began groping the right breast of the complainant with his open right hand. Understandably, CC was frozen and did not know what to do.
The facts, in relation to count 19, are that the offender then moved his right hand down and lifted the complainant's skirt up and tried, unsuccessfully, to place his hand inside her underwear. The offender rubbed the complainant's vagina, on the outside of her underwear. The complainant began to cry and after a time, the offender stopped. In each of these matters, the objective seriousness is lessened by the fact that there was only contact with intimate areas of CC, notwithstanding what the offender's intentions may have been but there was only touching over clothing. I do not mean to suggest, by that, that that limits the effect on CC, it clearly did not. It is a matter that makes count 18 objectively more serious, is the fact that, effectively, the victim was restrained, while both of the offences were committed and it makes count 19 more serious, that it reduced the victim to tears, before the offender stopped what he was doing. Both matters were committed in CC's home.
Against a submission made, on behalf of RKT, that those matters were well towards the bottom of the middle range, I find those matters are both in the midrange of objective seriousness but just below the middle of that range.
I then move onto offences against a victim I have already referred to briefly, whose name was KS. KS was born on 1 July 1986. In 1990, when she was either seven or eight years old, she stayed in Warialda Rail with her family, at her uncle's address, which was a short distance away from the offender's residence in this town. Her uncle was a friend of the offender.
Count 20 is an indecent assault under authority. The facts are that KS and her uncle went to the offender's residence. KS was walking on the grass barefoot and was struggling with burrs in her feet. The offender picked her up and carried her to a shed at the end of the driveway. The complainant was wearing a skirt at the time. The offender lifted up the skirt of the victim and used his thumb to stroke the complainant's vagina, on the outside of her underwear.
The facts, in relation to count 21, are that he then asked KS for a kiss. The victim gave the offender a small kiss on the cheek. The offender said "No, a proper kiss on the lips". The complainant did not want to do that but felt obliged to do so, as he was a friend of her uncle. She kissed the offender on the lips. She left the offender's residence shortly thereafter.
The facts, in relation to count 22, are that on a later date in 1991, the victim was again the residence of the offender. The offender took the victim into his bedroom and placed her on her back on the bed. He took the bottom of the complainant's shirt and pulled it upwards. He told the complainant "Pull your shirt up, I want to take a photo". As the offender turned to get his camera, the victim said "No". KS quickly then left the room.
In relation to the objective seriousness of stroking KS's vaginal area, outside her underwear, for the purposes of count 20, given the relatively brevity of that offending, I take the view that the objective seriousness of that matter is at a point where the mid and low ranges of objective seriousness meet.
Count 21, which related to the required kiss on the lips, that matter falls into the low range of objective seriousness.
As to Count 22, this is at the top of the low range of objective seriousness, KS being invited to hold up her top for a photograph to be taken.
The final facts relate to Count 23 and relate to a victim called DR, who was born on 4 January 1983. Between 1992 and 1994, when the complainant was aged six or seven, she attended the residence of the offender, with her mother. DS's mother, the offender's mother and DS were all in the lounge room. The offender's mother had a small dog, which DR had been playing with. It ran down the hall and out of the rear of the house to the backyard. DR, out of the sight of her mother, followed the dog out the back. The offender was standing out the back holding the dog. He said to DR "If you want to play with the dog again, you're going to have to let me look down your pants".
The facts, in relation to count 23, are that before the victim responded to that comment, the offender reached out with his free hand and pulled the elastic waistband of the complainant's jeans and underwear out away from her skin, exposing her vagina. The offender looked down at the complainant's vagina. Approximately 30 seconds later, the offender let go of the victim. The offender said "This is our little secret, you can't tell anyone". The victim left a short time later. In assaying the objective seriousness of this matter, I take into account that there was looking but not touching of the vaginal area, that the offending went on for about 30 seconds and the offending was accompanied both by a manipulative inducement, in terms of suggesting that the victim could not play with the dog, unless she behaved in the way that the offender suggested and then he made a threat by saying "This is our little secret, you can't tell anyone". That matter falls at the top of the low range of objective seriousness, for those reasons.
Before I go on to deal with some subjective matters that cut in different directions, in terms of the offender's personal details, I just want to make some observations about the sentencing task at hand. It is clear that the legislature, the Courts and the community, have an expectation that sexual trespassing against children is to be abhorred.
In punishing offenders, the Court needs to have regard to all the purposes of sentencing, as set out at s 3A of the Crimes (Sentencing Procedure) Act, 1999. In this class of offending, general deterrence and specific deterrence, particularly if an offender is a repeat offender, are matters that achieve significant weight in the equation, as does punishment and denunciation of conduct. It will be inevitable, I anticipate, because of the way RKT has indicated he intends, but as will also be required of him, he will undertake some mandated, lengthy, sex offender treatment while in custody. Mr Collins accepts, in this sentencing exercise, that rehabilitation has less work to do than would often be the case. Section 25AA(1) of the Crimes (Sentencing Procedure) Act, indicates that a Court must sentence an offender for a child sexual offence, in accordance with the sentencing patterns and practices, at this time, that is at the time of sentencing, not those in place at the time of the offence. Subsection (2) makes it clear that I am to have regard to the maximum penalties, at the relevant time and I will do that, by way of an example, as a guidepost or a benchmark and by way of comparison with the worst category case, see Ibbs v R [1987] 163 CLR 447.
Section 25AA(3), obliges me to have regard to the trauma of sexual abuse on children, as understood at the time of sentencing, which may include, of course, the latest psychological research or the common experiences of the Court. The common experiences of this Court involve regularly understanding how long running the psychological, physical and social impacts on victims and, as I said, such was eloquently made out in the Victim Impact Statements of AA, BB and CC, which I considered.
The way the trauma and effect on victims has been acknowledged recently was well expressed in R v Nelson [2016] NSWCCA 130 at para 32, where it was held:
"Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have life-long consequences, including an inability to form stable partnerships, in adulthood and possibly, self‑destructive behaviour".
I would add to that, apart from the other wounds and anguishes, that sometimes there will be evidence before the Court of damage to family relationships and here, the Victims' Impact Statements, for instance, speak of the affect for the victims on some relationships with parents, with partners but markedly with the way that some of the victims have chosen to parent their own children, in reaction to the trespasses against them.
I now want to move to some matters that are personal to the offender. Although he was a juvenile when he first commenced to offend against DW and was a person of good character, who had not been before the Courts for at least a significant portion of his offending, it is well understood that good behaviour, of itself, will have less work to do, in cases of serious sexual offending against children. I do not suggest that this was a case where RKT's lack of a criminal record gave him access to these victims, in the way that a teacher uses good character to have access to victims but the fact that he had not been before the Courts, when most of this offending committed, has little weight in the sentencing exercise at hand.
The offending, as I indicated, took place across a range of about 18 years. The offender has a criminal record that now denies him leniency.
In 1981, he had a PCA matter, for which he was disqualified. In 1983, he had a matter of stealing and a trespassing charge, which both attracted small fines. In 1988, he had a midrange PCA, which was the subject of a fine and disqualification. Relevantly, in 1994, for one count of child abuse, he was placed on a s 558 recognisance, to be of good behaviour for two years and on two further counts of child abuse, was ordered to perform 100 hours community service order. I have no further details, in relation to what constituted the offending in those cases. In 2015, the offender was sentenced in the District Court for a range of offences, including two indecent assaults, of a person under the age of 16 years and multiple counts of possessing, disseminating or making child abuse material.
In relation to all of those matters, he was, in due course, resentenced, by the Court of Criminal Appeal, on 18 December 2017. The effect of the order imposed, for those matters, committed later in time than these offences, was a sentence of four and a half years, with a non-parole period of three years.
I have had regard to the relevant decision of the Court of Criminal Appeal, to define some idea of the offender's behaviour, even though these offences were committed after these offences. Thereafter and I have seen the facts, in relation to these matters, the offender was sentenced to an aggregate sentence, in relation to three counts of sexual intercourse, with a person with cognitive impairment and an aggravated indecent assault, where the same victim has a cognitive impairment, to an aggregate sentence that was partially concurrent and partially consecutive, to the sentences that I have just described, imposed by the Court of Criminal Appeal. In that matter, the offender was sentenced to an aggregate sentence of five years, with a non-parole period of two years, two months, that non‑parole period commencing on 25 April 2018 and concluding on 24 October 2020. Accordingly, currently before I announce the sentences at hand, the offender's first possible date of release to parole, subject to those two pre-existing aggregate sentences, would be 20 October 2020.
The offender did not give evidence before me, so accordingly, I am able to accord the unsworn statements made to the author of the Sentencing Assessment Report and Dr Katie Seidler, in a report prepared for earlier proceedings, lesser weight, because he has not confirmed those matters on oath. I made it explicitly plain to Mr Collins that I would not be able to form a view, on the balance of probabilities, that RKT was the subject of sexual abuse himself as a child unless I heard some sworn evidence about it. It was understood that I would now not be able to make that finding, given that the offender elected not to give evidence.
Given there is a deal of synchronicity between both the psychological observations, attached to the SAR and Dr Seidler's observations and there is also a synchronicity between some of the background material, I am prepared to give some weight to the difficult circumstances of the offender's upbringing.
On the material before me, I am prepared to accept that he had a background where he was not subject to anything like optimal parenting. He commenced consuming alcohol from about 14 years of age, which is when he commenced his sexual offences against the first of these victims. I accept that in the past that RKT has been diagnosed with a mood and anxiety disorder and is currently prescribed medication. I accept that he was referred for the custodial sex offender program, on 8 December 2016 and, years later, he remains on the waiting list. The high intensity sex offender program drawn from the Sentencing Assessment Report, would run somewhere between seven and eleven months.
Although the Sentencing Assessment Report assesses the offender as being a low to medium risk of reoffending, some of that is based on the age that RKT is likely to be, at the time that he is released from custody.
Dr Seidler is one of the pre-eminent experts, in relation to both forensic psychology and also assessment of people with paraphilic and paedophilic disorders. At para 75 of her report and this was before these offences were known, she describes the offender as having "A long history of deviant, sexual interest in young girls". On a statistical basis, Dr Seidler formed the view that, in terms of actuarial risk, that the offender presented as being in the moderate to high range and put another way, that his assessed level of future risk is just under two and a half times that of the typical sex offender.
Dr Seidler assessed RKT in 2016, relative to the other offences, as having a moderate to high risk of re-offence. Although he will be significantly older than perhaps was anticipated by the Sentencing Assessment Report writer when he has his liberty and that will be a protective factor, he no longer has his long term partnership, which seems to have been a protective force for him. During the longest period that he did not, apparently, commit offences, he was with that partner.
Dr Seidler did identify some matters that were protective against RKT's risk of further offending, including that he did not present as inherently antisocial, either by way of attitudes or lifestyle, that he did not utilise physical coercion, in his offending, that he had been productive in the community and that he is not psychopathic, according to a test she administered. Some other factors that she identified as being protective are that the offender does not associate with antisocial others. He has demonstrated a capacity to address his alcohol abuse and he sustains sobriety. Within other material that I have seen it appears that he has been sober for some 24 years. When he was assessed by Dr Seidler he recognised the need for psychological treatment and that much is evidenced by his commitment to enrolling in and undertaking the sex offender program in custody.
On the basis of material in Dr Seidler's report, it must be understood that she accesses him as a medium/high risk, without knowing about this sexual offending across 18 years. It necessarily means that the Court needs to be even more guarded, in my view, about the level of future risk. Against that, I am prepared to find that RKT is remorseful, partly, that is demonstrated by his indication that he did not intend to defend these matters and at an early stage in proceedings, had his lawyers communicate to the prosecution that he wanted to plead guilty to everything.
Additional to that, there are some statements, which are more recent than the statements to Dr Seidler, statements to the author of the Sentencing Assessment Report, that include expressing regret for his behaviour, indicating "I feel terrible". He acknowledged his offending, not only to the victims but also their family and he described himself as "An animal".
The psychological assessments that are attached to the Sentencing Assessment Report, are assessments made by a senior psychologist, at the Hunter Correctional Centre, but generally the author looked at records, rather than making a personal assessment. She describes:
"The current offences provide a broader picture of Mr T's offending repertoire, including the early onset and persistent offending against children, that Mr T has engaged in since the age of 14 years. He has admitted to longstanding sexual arousal and interest in females under the age of 10 years, which was exacerbated by excessive alcohol use or, at times, of emotional distress".
There is no evidence of offending between 1991 and 2010, which correlates with the timeframe of RKT's only intimate adult relationship.
The material that I have derived from the Pre-Sentence Report and the Sentencing Assessment Report, aided by the understandings gleaned from Dr Seidler's report, suggest that this man, with a disadvantaged and deprived upbringing, will be effectively homeless when he has his liberty. Even though he has not yet achieved the age of 60 years, he is a person who has the potential to die in custody.
I have mitigated the sentences a little, having regard to what could be seen as a crushing sentence at this stage of a person's life. That said, I have regard to what has been said by the superior courts, in relation to delay in this class of offence. The reality is that the offender had many years, at large, in the community, without the opprobrium that should have attached to an understanding of his past to his behaviour.
In R v Cattell [2019] NSWCCA 297 at para 135, Price J, with whom the balance of the Court agreed said:
"In historical sexual assault cases, a child sexual offender does not necessarily benefit from an extensive delay in the revelation of offences".
In Hornhardt v R [2017] NSWCCA 186, the offender pleaded guilty in 2015 to seven offences of child sexual assault that occurred between 1965 and 1978 but were reported to police in 2014. Hoben CJ at CL, with whom Price and Adamson JJ agreed, in answer to the submission that the sentencing judge did not adequately take into account the delay in prosecution said, at paras 35 to 55:
"This is a somewhat bold submission, it is notorious that offending, by its very nature, causes victims to be reluctant to come forward and make a complaint. This is particularly so where close family relationships are involved [as is the case in many of these matters], such as we have here. It is a significant distortion of the reality of the situation to argue that in some way the applicant has been disadvantaged because his criminality has been undetected for a number of years".
I do not intend to place much weight on the issue of delay in this matter for similar reasons.
Totality plays an important part. The judge who sentenced the offender for his second tranche of offences made the sentences partially concurrent and partially accumulative to the sentence that had been imposed by the Court of Criminal Appeal for his other sexual offending.
I am persuaded by Mr Collins' submission that it is appropriate, having regard to issues of totality, to commence the sentence that I will impose today from the date that the offender was charged for these matters, which is 13 August 2018. The effect of that will actually mean that the sentence that I impose is partially accumulative and partially concurrent, both with the initial Court of Criminal Appeal sentence and more significantly so, with the sentence imposed by Armidale District Court, for the offending against the cognitively impaired victim.
The offender pleaded guilty, before me, in February of this year but it is accepted by the Crown Prosecutor that meaningful discussions, including a communication that there would be an acknowledgement of guilt, in relation to all the offending, was communicated to the Crown, in November 2019. The Crown posited a range within which my discretion may operate in terms of imposing a utilitarian discount, of affording the offender a utilitarian discount in the range of 15 to 20%. In dialogue between bench and bar table, I posited that because of the difficult exercise of the victims giving evidence about events that occurred so long ago and the length of any defended proceedings, that I was of a mind that the utilitarian discount here should be not insignificant and indicated a provisional view to afford RKT a 20% utilitarian discount. The Crown Prosecutor did not want to be heard against such an exercise in my discretion.
I intend to sentence RKT to an aggregate sentence. That means I need to identify appropriate indicative sentences for each of the 22 counts before the Court. I need to have regard to notional issues of totality, both between the counts that relate to individual victims and across all of the matters and further, have regard to totality, in the whole sentencing exercise.
I find special circumstances, on the basis of totality only. I indicate that I sentence, having regard to s 25AA(1) and the sentencing practices, in place, at this time. I have regard to s 25AA(3) of the modern understandings and the current day understandings of the traumatic effect of child sexual abuse, on child victims. I have regard, obviously, to the maximum penalties, in place, at the relevant time and I disregard that similar offending today would attract offences with much higher maximum penalties.
The indicative sentences are all with the 20% discount applied. The indicative sentences are:
Count 1, seven months;
Count 2, eight months;
Count 3, eight months;
Count 4, nine months, two weeks;
Count 5, twelve months;
Count 6, two years, five months;
Count 7, three years;
Count 9, nine months, two weeks;
Count 10, fourteen months, two weeks;
Count 11, three years;
Count 12, three years, two months;
Count 13, three years, four months;
Count 14, fourteen months, two weeks;
Count 15, fifteen months;
Count 16, nine months, two weeks;
Count 17, nine months, two weeks;
Count 18, nine months, two weeks;
Count 19, twelve months;
Count 20, nine months, two weeks;
Count 21, seven months;
Count 22, eight months;
Count 23, nine months, two weeks.
RKT, you are convicted, in relation to each count. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act, I impose an aggregate sentence. The aggregate sentence is ten years, six months and thirteen days, commencing on 13 August 2018 and expiring on 25 February 2029. There is a non-parole period of seven years, three months and thirteen days, which means the earliest date of release to parole is 25 November 2025.
In looking at issues of totality, the whole time that you have now been in prison for the first set of matters, the second set of matters and these matters, means that the non-parole period that you will serve is ten years and the period on parole is three years and three months, which conforms with the statutory formula, to ensure that your non-parole period does not exceed 75% of the entire period to be served.
Thank you to both of the barristers for your careful attention, I have done the best I can to deal with the very competing considerations in this terrible case. I am grateful to the victims for showing an interest in the matter, I know it is very important to you and I have obviously had regard to things that you have told me about your lives and I hope this is one step towards life becoming a little bit easier for all of you.
[2]
Amendments
11 January 2021 - Reference removed to comply with non publication order
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Decision last updated: 11 January 2021