pecified a standard non-parole period in respect of the offence. Until relatively recently the maximum penalty for an offence contrary to s 66EA was 25 years imprisonment.
[2]
Facts
The facts are before the court by way of a set of Agreed Facts that are part of the Crown tender bundle, exhibit A on sentence. Those facts are comprehensive and set out in some detail the fourteen unlawful sexual acts relied upon. It is accepted by the offender that those fourteen acts are not isolated. Given the publication restriction in this matter I will refer to the victim either as "the victim" or by her initials. This is not to depersonalise the victim but is done to protect her anonymity.
The victim was born in 2006 and is the biological daughter of the offender who is 41 at the time of sentence. In 2019 the victim began to exhibit behavioural issues and for a time went to live with her paternal grandmother in Queensland. While in Queensland the victim disclosed to a cousin that the offender had been sexually assaulting her. This complaint was relayed to the victim's mother on 11 April 2019.
After the initial phone call screen shots of the victim's text messages to her cousin containing the disclosure were sent to the victim's mother. The offender was sitting with the victim's mother when the text message was received and was able to read the message. The offender said at one point, "You can stop reading. Whatever she has written after this, it is all true. You need to call the police" and "Whatever she said I did, I did it".
The victim's mother rang the local police and told an officer of the admissions by the offender. She was told to wait and officers would attend the home, but she did not want the offender to remain in the house so she and the offender set off on foot to the police station. Police rang and told the victim's mother that they would come to them at home. Police arrived at the home and spoke to the offender who accompanied them to the police station.
The offender was interviewed and made extensive admissions to having an ongoing relationship with the victim between 2010 and 2018 during which time the victim was aged between 5 and 12 years. The offender attended the interview voluntarily and after disclosing the first offence was afforded his rights and he elected to continue with the interview in which he made further detailed admissions.
The victim was interviewed by police in Queensland on 12 April 2019 and told them in general terms about things done to her by the offender over the years but not in as great a detail as the offender told police.
The offender made admissions to the fourteen different offences relied upon as the particulars of the offence contrary to s 66EA. The admissions extended to other conduct indicating that these fourteen instances were not isolated and are in reality representative counts of an ongoing course of conduct.
The first offence or instance, an aggravated indecent assault, occurred between 1 January 2010 and 29 October 2013 when the family was living in two separate units (him in one and his wife in the other) in the Illawarra region. The victim had not yet started school and went to day care three days per week. The offender was her principal carer when she was not in day care. The victim was wearing a dress but no underpants. The offender observed the victim's naked vagina and began tickling her on her body. His penis became erect and he sat the victim on his knee facing away from him. He masturbated himself and rubbed his erect penis back and forth on the buttocks of the victim. He continued to masturbate to ejaculation. He then put the victim back on the floor and went to wash his hands.
The next offence or instance occurred some few weeks later and involved sexual intercourse. The offender was in his wife's unit and went to have a shower about midday. The victim entered the bathroom and asked if she could shower with him. He agreed and removed both of their clothing. While in the shower the victim asked if she could touch the offender's penis. The offender held the victim's hand and moved it up and down on his erect penis. The offender then put his penis into the victim's mouth who sucked on the penis for a short time before the offender removed his penis and ejaculated on to the floor. From time to time the offender told the victim not to tell anyone.
The offender in the interview in which he made admissions described other generalised conduct specific to that address as "flashes", "little gropes" and "rubbing". Including him asking to look at her vagina, conducting oral sex on the victim at bed time, him looking at her in the bathroom and him exposing his penis to her in the bathroom and asking her to touch it. The admissions included that these acts took place sporadically when the opportunity arose, sometimes two to three days in a row with one to two weeks in between sexual acts.
In October 2013 the family moved to another address together. It was at this address that the third, fourth, fifth and sixth offences or incidents occurred, together with other conduct. These are all offences of Sexual Intercourse with a Child Under 10 by a Person in Authority.
On one occasion the offender led the victim upstairs into the main bedroom of the home. The victim's brother was home and remained downstairs playing a computer game. The offender locked the bedroom door behind him, removed his and the victim's clothing and lay on his back on the bed. He then asked the victim, who complied, to climb onto his face. The offender licked the vagina of the victim for a short time.
After performing cunnilingus for a short time he asked the victim to suck his penis. He put his penis into her mouth and the victim moved her mouth up and down on his penis. While this was happening the offender was performing cunnilingus on the victim. After a few minutes the offender pushed the victim away and ejaculated into his hand.
Offences or instances 5 and 6 are similar. The offender recalls that there was an occasion when he asked the victim to sit on his face. He removed his and victim's clothing and lay on his back on the lounge. The victim climbed on him and straddled his face as he requested and the offender kissed and licked the victim's vagina.
The victim then held the offender's penis in her hand and it was moved in and out of her mouth. Prior to ejaculation the offender told the victim that he was "ready" and she rolled off of him. He ejaculated into his hand and he went to the bathroom to wash his hands.
The offender recalls that at the latter address he had discussions with the victim related to not telling anyone about their games or he would get into trouble.
Further the offender described other "generalised" conduct including him putting his hand down the victim's pants, holding or rubbing her vagina, having the victim hold his penis, showing his penis to the victim, the victim exposing herself to him and pulling her labia apart while the accused masturbated. This activity would occur at various locations in the house perhaps every two to three days, with sometimes weeks passing between sexual contact.
In September 2016 the family moved to the NSW south coast. Offences or instances 7, 8 and 9 occurred at these premises. The first matter is an instance of Sexual Intercourse with a child between 10 and 14 years. Soon after moving and while the offender was in a side room unpacking boxes the victim asked if they could play. The offender agreed and pulled down the victim's pants and underpants. He turned away and pulled down his pants and underpants exposing his penis.
The offender then rubbed his erect penis up and down in between the buttocks of the victim. He then used his penis to push the outer lips of the victim's vagina apart and while holding his penis continued to rub it back and forth against the victim's vagina for a few minutes and then ejaculating into his hand. The offender's wife was regularly working away from home during the week during which time the offender was the sole carer for the children while she was away.
Other "generalised" conduct at the south coast address included the offender putting his hands down the victim's pants and rubbing her vagina, the offender masturbating while the victim exposed her vagina and the offender rubbing the victim's exposed vagina.
Offences or instances 8 and 9 occurred as part of the one ongoing incident. The offences are one count of Sexual Intercourse with a Child between 10 and 14 and an Aggravated Act of Indecency. The victim was sitting on a black leather lounge playing with an X-Box when the offender entered the room and asked the victim whether he could lick her vagina. She agreed and opened her legs. The offender then kneeled and performed cunnilingus on the victim while she continued to play on the X-Box. At the same time the offender removed his penis from his shorts and masturbated to ejaculation. He stopped licking the victim's vagina and went to the bathroom to wash his hands.
In December 2017 the family moved to the NSW South West Slopes, at which time the victim was 11 years of age. There are three separate episodes of offending that form part of the particulars of the offence to which the offender has pleaded guilty. The first episode comprises offences 10 and 11 namely incite a child under 16 to commit an act of indecency and an aggravate commit act of indecency.
The offender put the victim to bed one night. She lay on her bed, opened her legs towards the offender and showing him her underwear. The offender asked if he could perform cunnilingus on the victim and she said no. The offender asked if she would show her vagina to him and she pulled her underwear to one side showing her vagina. The offender stood in the hallway, removed his penis from his pants and masturbated to ejaculation. The victim was on the bed watching the offender.
Offence or instance 12 is an offence of Sexual Intercourse with a Child between 10 and 14 years. On another afternoon the offender went to the victim's room. She sat on her bed and the offender stood next to her. The victim told the offender that she could fit her finger inside her vagina and then demonstrated this to the offender. The offender asked if he could put his finger into her vagina. The victim agreed and the offender spat on his finger to lubricate it before pushing it into the victim's vagina. The victim told the offender to stop and he did so.
Offences or instances 13 and 14 were the last offending that took place. This offending took place towards the end of 2018 in a shed at the rear of the property when the victim was about 12.
The offender located a condom and asked the victim if he could have sex with her. She agreed and the offender led her to the shed where he lay her down on a pile of old clothing with her pants and underpants down. The offender removed his own pants and underpants and performed cunnilingus on the victim.
The offender then put the condom on his erect penis and pushed his penis into the victim's vagina. She squirmed and asked him to stop. The offender removed his penis from her vagina, took off the condom and asked the victim to masturbate him, which she refused to do. They both went inside the house after the offender disposed of the condom.
After this offence the offender described that "nothing more than a flash" occurred. The victim said that she did not like doing things with him and she told him that it was "weird" and that "dads aren't supposed to do that".
The Agreed Facts also recite that the offender told police in the course of the interview that he understood that his conduct with and towards the victim was legally and morally wrong. Further, he felt as though he was in a secret relationship with the victim and he was sexually attracted to her.
Further the final paragraph of the Agreed Facts recites, "The [offender] indicated he was sexually attracted to other girls under the age of 16 years but other than with the complainant had not acted upon this attraction, indicating that the conduct with [the victim] was opportunistic."
[3]
Assessment
The offence for which the offender appears for sentence does not carry a standard non-parole period. However, it is still necessary to make some assessment of the seriousness of the matter. As I observed in R v GP [2019] NSWDC 493 at [25] the following matters go to inform the seriousness of an offence contrary to s 66EA(1) of the Crimes Act:
The age of the child victim during the unlawful relationship;
The length of time over which the unlawful relationship was maintained;
The frequency with which sexual activity occurred;
The type of sexual activity involved, including whether there was ejaculation. However, caution should be exercised noting the effect of the various authorities such as Bravo v R [2015] NSWCCA 302 where Hulme J (Beazley P, Johnson J agreeing) said at [42]:
"As was observed in R v Gavel :
'[97] … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].'"
The extent of and frequency of any physical violence, coercion, threats or admonitions not to disclose the offending conduct; and
Whether there is a position of trust or authority e.g. parent or step parent.
The Crown submitted that the matter was above mid-range. Mr King submitted that it was conceded that the particularised offences are representative. Further it was conceded that this matter was a very serious example of the offence. The submission continued however that there was only one instance of penile/vaginal intercourse that ceased when the victim complained that it hurt.
The uncharged conduct does not increase the penalty. However, those acts do deprive the offender of leniency that might otherwise be extended to him if the specified acts were the only indecent conduct in which he engaged.
In the matter presently under consideration the offending conduct commenced when the victim was four and stopped when the victim was 12 years of age. The offending conduct spanned the period January 2010 to December 2018 meaning that the unlawful relationship existed for 8 to 9 years. The sexual activity occurred on a frequent and regular basis, noting in particular the significant amount of what is described in the facts as "other conduct". The sexual activity included various forms of sexual intercourse as defined in s 61H of the Crimes Act. There was no physical violence and the facts recite that the offender stopped on the occasions that he was asked to stop. The victim was told on occasions not to disclose the conduct. The victim is the natural daughter of the offender.
In these circumstances I am firmly of the opinion that the matter before the court is a serious example of offending contemplated by s 66EA(1) of the Crimes Act. If required to place the offending on a scale, I am of the opinion that it is above mid-range, more than slightly above mid-range but not an example of a worst case.
[4]
Criminal History
The offender has no criminal history and in other circumstances would be entitled to considerable leniency because of that, noting that he is now 41 years of age. However, there is on this issue the nature of the offending to be considered.
McHugh J, who was part of the majority in allowing the appeal, in Ryan v The Queen (2001) 179 ALR 193 at [35]-[37] said:
"Given these circumstances, Gleeson CJ was correct when he said that the appellant was not entitled to significant leniency because of his otherwise good character. However, Nield DCJ gave the appellant no leniency whatsoever for his otherwise good character. He was entitled to some leniency for his otherwise good character. That being so, the Court of Criminal Appeal should have allowed the appeal and re-sentenced the appellant. In re-sentencing the appellant, some weight should be given to the appellant's otherwise good character.
[36] In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Second, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case.
[37] In this case, once the offences before Nield DCJ and Rummery DCJ are excluded, the appellant was of otherwise good character. He was entitled to some leniency because of that good character."
Kirby J, also part of the majority in Ryan said at [110]:
"…To ignore totally evidence relevant to the latter because of a general assessment that the appellant was not, globally speaking, a good man or had committed serious crimes, involves a departure from basic sentencing principle. Even in the case of offences against vulnerable children and young persons over an extended period, as here, a proper evaluation of all matters relevant to the sentencing function required that some weight be given to the evidence of character that stood to the appellant's credit. By dismissing that evidence out of hand, and refusing to give it any weight at all, the sentencing judge erred".
However, the preponderance of recent authority is such that the weight to be given to the prior lack of record is limited. Rothman J in delivering the decision of the court in R v TWP [2006] NSWCCA 141 at [16]-[17] said:
"There are a number of matters which need to be raised in relation to the sentence imposed and the remarks of the sentencing judge. The first is the reference to 'previous good character'. The sentencing judge was here referring to the fact that, as at the date of sentencing, the respondent had no prior convictions. He was also referring to the references, mentioned above, provided on his behalf. The sentencing Judge seemingly took this into account to some large degree as he did the lack of a likelihood to re-offend. Each of these, no doubt, depends upon the report of the registered psychologist which was in evidence before his Honour and before this Court.
[17] The difficulty with this approach, in relation to offences of this kind is that, similar to most white-collar crime, the non-apprehension of the respondent (or his prior good behaviour) is almost a necessary condition to the commission of the crime. In circumstances where the respondent faces 17 offences of sexual assault on children spanning a period of almost 20 years, previous good behaviour is a factor which ought provide little weight in favour of the respondent."
The offender is therefore entitled to some degree of leniency because of his lack of record. However that leniency is not as considerable as it might otherwise be because of the nature of the offending.
[5]
Need for general deterrence
My observations under this heading in the remarks on sentence in R v GP are apposite in this matter. The offender used his natural daughter as a sexual plaything for a period of 8 to 9 years while she between 4 and 12 years of age. He was apparently indifferent and uncaring about his position of trust as the victim's father, the age of his victim, the short and long-term effects of his consistent offending on the victim and the utterly inappropriate relationship he was continuing. On the issue of short and long-term effects it is now widely and generally accepted that this type of offending does have an effect on victims.
It is undoubted that there is a strong need for general deterrence when dealing with offences of child sexual assault. This concept goes back to at least the Crown appeal in the matter of R v Muldoon unrep NSWCCA 13.12.1990. More recently, see for example the judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] where his Honour said:
"The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said:
'General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.'"
Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]:
"It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]:
'This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].'"
Some of the other cases that deal with the issue of general deterrence include R v Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316.
[6]
Victim Impact Statement
Exhibit B on sentence is a victim impact statement by the victim. That victim impact statement speaks eloquently of the short and long term effects of the offending in which the offender engaged. The effect on the victim is precisely as one would expect it to be. Clearly enough, the offending still has an effect on the victim.
However, without deprecating the undoubted effect on the victim, given the effect of the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8, in the absence of other material, e.g. from treating health professionals, the court cannot be satisfied beyond reasonable doubt that any factor of statutory aggravation is made out. Be that as it may the effect on the victim is a relevant consideration so far as s 3A(g) of the Crimes (Sentencing Procedure) Act, 1999 is concerned.
[7]
Assistance
The issue of assistance is a significant point of dispute between the parties. Mr King on behalf of the offender submits that the offender is entitled to an additional numerical discount of 15%, which would mean a combined discount of 40%, for assistance. The Crown's primary submission is that the offender is entitled to no additional discount for assistance. The secondary submission made by the Crown that if any discount is allowed it would be minimal and no more than 5%.
Mr King submits that the assistance by the offender is that of the type contemplated by the decision of R v Ellis (1986) 6 NSWLR 603, in which Street CJ said at 604:
"This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows confession of guilt in the form of a plea of guilty is a well- recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." (emphasis added)
Beech-Jones J in giving the judgment of the Court in R v AA [2017] NSWCCA 84 said at [47]:
"In this case there are reasons to doubt whether the form of "assistance" that AA provided on the evening of 23 October 2015 would fall within the passage from Ellis set out above. By the time AA attended the police station, the process for reporting BB and CC's complaints to the police was already in train. Nevertheless, his actions in attending the police station in advance of the police being notified of the complaints, and in admitting some of the abuse, does fall within s 23(1)."
R v AA is also authority for the proposition that if an allowance is made for assistance in accordance with the principles enunciated in R v Ellis then s 23 of the Crimes (Sentencing Procedure) Act applies and the discount must be quantified - see Beech-Jones J at [49].
In the matter under consideration Mr King argues that the offender is entitled to a discount for assistance because he went to the police in advance of them being notified of the complaint. The Crown argues that no discount should be allowed because given the complaint to the aunt by the victim it was inevitable that the police would have been informed. The Crown argues (MFI 3 on sentence) that s 23 of the Crimes (Sentencing Procedure) Act is not enlivened. Further, the Crown argued that what the accused did by making the admissions that he did was to (using the words used by the Crown at the sentence hearing) "put meat on the bones" of the allegations.
Beech-Jones J in R v AA at [22]-[24] set out the factual situation so far as the initial complaint being made and the offender making admissions to police. The facts are very similar to the matter presently under consideration. The initial disclosure was made by the victim to a worker at a day care centre. The worker reported the disclosure to a manager who reported the matter to the victim's parents who confirmed the allegations with the victim. The offender's mother was advised of the allegations and spoke to the offender who initially denied the allegations. Later he admitted the conduct to his mother. The offender later that same day went to the police where "according to the agreed facts AA made admissions to indecently assaulting the two complainants".
Returning to [47] of the judgment of Beech-Jones J in R v AA his Honour said that "there are reasons to doubt whether the form of assistance that AA provided on the evening of 23 October 2015 would fall within the passage from Ellis set out above…Nevertheless his actions in attending the police station in advance of the police being notified of the complaints and in admitting some of the abuse does fall within s 23(1)". The added emphasis to the last part of the extract is mine.
The Crown Prosecutor in written submissions (MFI 3 on sentence) puts, "The disclosure came before the police were involved. Why that is a significant factor is not clear". With respect, that is a significant factor because of what was said by Beech-Jones J in R v AA at [47]. The Crown further argues that it is clear that the victim having made a complaint to an adult the police would have become involved. Again, for all practical purposes the situation is the same as it was in R v AA.
Further the Crown argues - although it seems to me that is essentially the same point - the fact that the complainant was not interviewed until the day after the offender made the admissions does not have the significance claimed. This submission is answered by what I have said in the paragraph immediately above. Yes, almost certainly the complainant would have been reinterviewed. However it is mere speculation as to whether such an interview would have revealed the offending conduct to the extent of the admissions made by the offender.
The same applies to the submission that, "had the complainant been in her mother's home, or had the offender not been, it may have unfolded in a totally different way. The offender is making the best of the unusual circumstances of how the first complaint and his admissions came to light". What may or may not have occurred in different circumstances is a matter of speculation.
The Crown argued that the matter presently under consideration can be distinguished from the factual situation in R v AA. Mr King maintained in his submissions in reply that given what appears at [47] in the judgment of Beech-Jones J in R v AA that decision cannot be distinguished from the present case. I agree with the submission of Mr King in this regard.
In the matter presently under consideration the offender did attend the police station and make very substantial admissions before the police were notified. Indeed, it was the offender who asked his wife to contact the police. In these circumstances and in particular noting and following the decision of R v AA (especially at [47]) I am of the opinion it is appropriate to extend a numerical discount to the offender for assistance.
Section 23 of the Crimes (Sentencing Procedure) Act relevantly provides:
23 Power to reduce penalties for assistance provided to law enforcement authorities
(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:
(a) (Repealed)
(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d) the nature and extent of the offender's assistance or promised assistance,
(e) the timeliness of the assistance or undertaking to assist,
(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,
(j) (Repealed)
(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:
(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and
(b) state the penalty that it would otherwise have imposed, and
(c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason.
(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
In the matter presently under consideration the assistance was significant and useful, noting in particular that the agreed facts (paragraph 6) indicate that when interviewed the victim told them in general terms about things done by the offender but not as in great as detail as the offender. The Crown argues that this factor must be considered in light of the fact that the complaint had already been made. This is a factor that in my view goes to the value of the discount rather than whether the discount should apply at all.
Despite the Crown's submissions there are no reasons to doubt the truthfulness, completeness or reliability of the admissions and therefore the assistance rendered by the offender. The nature and extent of the assistance is such that the prosecution was based on the admissions made by the offender. The extent of the assistance is considerable. The assistance was timely in that it was given for all practical purposes immediately after the offender became aware that a complaint had been made.
In respect of this issue the Crown submits by way of raising a number of rhetorical questions namely, "Is it reliable? Is it the complete truth?" Further, the Crown puts that the court should not assume that s 23(2)(c) is satisfied simply because of an assertion by the accused. Again, it seems to me that the answers to the questions posed by the Crown are speculative. In any event, the agreed facts upon which the Crown relies are drawn from the admissions made by the offender. In other words, the admissions are - and it seems always were - the Crown case.
The extent of the assistance so far as I can determine from the material before me in the Agreed Facts is that the offender has made very comprehensive admissions to a significant ongoing course of sexual misconduct with his natural daughter. I note the admissions include conduct beyond the fourteen specific instances.
The only benefit the offender will receive is the discount I will allow.
There is no evidence that the offender will suffer harsher custodial conditions as a result of the assistance. There is no evidence of any injury suffered by the offender or any of the offender's family. Likewise there is no evidence of any danger or risk of injury to the offender or the offender's family resulting from the assistance or undertaking to assist. The assistance relates to the offending for which the offender is being sentenced.
I note the requirement of s 23(3) that the sentence must not be unreasonably disproportionate to the nature and circumstances of the offence.
Any allowance would be for past assistance. There would be no allowance for future assistance.
So far as quantum of the discount is concerned Mr King argues for 15% in addition to the discount for the utilitarian value of the plea. The Crown argues that there be no additional discount beyond that of 25% allowed for the utilitarian value of the plea. In all of the circumstances noting in particular the offender had the police informed immediately on him becoming aware of the complaint and the comprehensive admissions summarised in the Agreed Facts I am of the opinion that the appropriate discount for the assistance is one of 10%, which with the discount for the utilitarian value of the plea makes a total combined discount of 35%.
[8]
Subjective Case for offender
No oral evidence was called from or on behalf of the offender. However there is a volume of written material, principally a report from Dr Richard Furst, Psychiatrist, which is exhibit 1 on sentence.
Dr Furst observes that the offender is a 41 year old male who was living with his partner in a South West Slopes town at the time of his arrest. The offender was born in Wollongong and had his childhood in that region. His mother was an alcoholic and "unfaithful" on several occasions. His father was a social drinker but not violent. The offender and his older brother were aware of the marital disharmony in the household. His parents separated when he was 14 or 15 years of age. The offender was subjected to sexual abuse in early childhood at the hands of an older cousin.
In combination these matters and the various matters set out in answer to question 4 at p 6 of the report enliven the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 reducing the offender's moral culpability to an extent. However I observe that the principles are not enlivened to the extent that this court has seen with other matters particularly in far western New South Wales.
I note the Crown submitted that the court would not give much weight to the issue of the offender being sexually assaulted in the past. The submission continued that there are too many unknowns and a lack of specificity. All of that may well be correct. The sexual assault on the offender is merely one of several factors that enliven what have become known as the "Bugmy factors".
When he was eight years of age the offender and his family moved to Queensland. He has held various unskilled types of employment over the years. He lost a close friend in a motor vehicle accident when he was about 19 years of age. There are no indications of a major mental illness.
According to Dr Furst the offender has a history of excessive drinking of alcohol dating back to his teenage years and he has always been a heavy drinker. At p 6 of the report Dr Furst opines that the offender suffers from alcohol dependence. He began using cannabis when he was 17 and experimented with MDMA.
At p 4 of the report Dr Furst sets out that the offender acknowledged his guilt in relation to the offending. The offender was apparently drinking heavily during the period the offending was continuing. In respect of the offending the offender told Dr Furst that he was disgusted in himself and that, "it cost me everything…what I've done has hurt my people, my family, I can't take away what I've done. Lost my kids, lost my dad…I have to live with it, they have to live with it". The report sets out (p 4) that the offender was aware of the potential negative impact of his sexual offending on the victim.
Under the heading, "other issues" Dr Furst records that there have been trust issues between the offender and his wife and the children have significant emotional/health problems with one son being severely autistic and the other suffering macular degeneration with associated visual loss to the point where he is going blind.
The offender has apparently suffered with symptoms of anxiety and depression consistent with an adjustment disorder. He has been prescribed anti-depressants, which apparently have had a positive effect. The offender is working at the Junee Correctional Centre.
The report also sets out that the offender's mother wants him to live with her upon his release. The reality is that release from custody on parole is many, many years away.
Dr Furst opines (p 7) that the offender is suffering from alcohol dependence and adjustment disorder with depressed and anxious mood. It was noted that the offender was diagnosed with "depression/anxiety" by his general practitioner in 2013.
It is the recommendation of Dr Furst that the offender remain under the care of psychiatric services through Justice Health with regular reviews and the current prescription for anti-depressants continues. Drug and alcohol input is also indicated.
Dr Furst administered the STATIC-99R test and concluded that the offender was at a low risk of re-offending. The Crown Prosecutor submitted - at least as I understood the submission - that the STATIC-99R test is such that any person who has no prior sexual offending is always assessed as being at a low risk of re-offending and that every first offender is assessed at a low prospect of re-offending.
On the issue of likelihood of further offending the Crown submitted that the court should not make a positive finding to that effect in favour of the offender because of the contents of paragraphs 40 and 41 of the Agreed Facts, especially that the offender admitted that had the conduct not been disclosed he possibly would have continued that offending and that he was sexually attracted to young girls under the age of 16 years.
The court has the opinion of Dr Furst and the STATIC 99R test. The offender will be much older than he is at present upon his release. Although he offended against the victim over a considerable period of time there is no prior criminal history. However as Mr King submitted the offender voluntarily ceased offending. Doing the best I can with the available material I am prepared to make a finding on balance that the offender is unlikely to re-offend.
The bulk of Mr King's oral submissions went to the issue of assistance with which I have dealt in some detail. It was put that the admissions also go to the issue of remorse. The admissions in combination with what the offender said to Dr Furst in my opinion entitle the offender to a finding on balance that he is remorseful. For more abundant caution I indicate that if it were merely the untested hearsay comments to Dr Furst the offender would not be entitled to that finding. However, as the offender is receiving what I consider to be a substantial discount for assistance it would be engaging in double counting if there was further consideration so far as remorse is concerned.
Mr King also submitted that the court would find on balance that the offender has good prospects of rehabilitation. It was put that he is willing to engage and that he understands that he needs assistance. While there are some very positive signs much will depend on the manner and extent to which the offender engages while in custody with the various courses and the manner and extent to which he engages upon his eventual release. I am not prepared to make a positive finding on balance at this stage that the offender has good prospects of rehabilitation.
Later in submissions Mr King emphasised that part of Dr Furst's report that enliven the principles enunciated in Bugmy v The Queen. It was appropriately conceded that there was no causal connection between the mental conditions set out in Dr Furst's report and the offending. However, it was argued that all of that was part of the "subjective mix". I agree with that submission.
I also note the contents of Exhibit 2 on sentence, which is a letter from the offender's mother. That letter confirms some of the contents of Dr Furst's report as to the childhood of the offender.
[9]
Statistics and other cases
With his usual thoroughness Mr King took me to a number of cases which were said to be comparable, the Public Defender's table of cases and the statistics kept by the Judicial Commission. One difficulty with such cases is that the maximum penalty for the offence for which the offender appears for sentence has recently been increased to life imprisonment. As I observed at [59] in my remarks on sentence in R v GP, "It is trite that if the maximum penalty is increased then as a general proposition there should be an upward movement in the sentences that are imposed".
The table of cases indicates a range of total sentences between 6 years and 16 years 6 months with non-parole periods ranging between 3 years 6 months and 12 years 4 months. The statistics indicate that since "the reforms" including the increase in maximum penalty, the total sentences of a sample of four cases ranges between 7 and 16 years. I have read and considered the table and the statistics but I warn myself about the use of statistics conformably with such decisions as Brown v R [2014] NSWCCA 215, especially at [80]-[81] per Garling J, and the observations of Bathurst CJ in SS v The Queen [2016] NSWCCA 197 at [62]-[73].
I have also read and considered the decisions of IS v R [2011] NSWCCA 142, Mills v R [2017] NSWCCA 87 and R v DR [2018] NSWDC 405. The offending is different in each matter and they are of limited utility. In particular, Mr King relied upon the number of offences contrary to s 61J of the Crimes Act relied on in the matter of Mills together with what Mr King described as the "barbarity" of some of the offending. I note however that the maximum penalty at the time was 25 years as opposed to life imprisonment.
Mr King also submitted that the offending in R v DR was worse than that in the matter presently being considered. As I read the decision of Berman SC DCJ the victim was 10 years of age when the abuse commenced. The victim did fall pregnant. Mr King's submission is probably correct but again the maximum penalty was 25 years imprisonment as opposed to life imprisonment.
[10]
General remarks
The offender was taken in custody on 11 April 2019 and as I understand the submissions both parties accept that the sentence should date from that date.
I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:
1. to ensure that the offender is adequately punished for the offence,
2. to prevent crime by deterring the offender and other persons from committing similar offences,
3. to protect the community from the offender,
4. to promote the rehabilitation of the offender,
5. to make the offender accountable for his or her actions,
6. to denounce the conduct of the offender, and
7. to recognise the harm done to the victim of the crime and the community.
Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty of life imprisonment for the s. 66EA(1) charge and the the offending it is inevitable that there must be a substantial sentence of imprisonment imposed. That sentence must be a sentence of full time imprisonment. Counsel for the offender to submit otherwise.
In all of the circumstances I am of the opinion that he appropriate starting point for the offence contrary to s 66EA(1) of the Crimes Act to which the offender is 25 years imprisonment from which is to be deducted the 35% combined discount for the plea of guilty and the assistance. That results in a total sentence of 16 years and 3 months.
Mr King in his oral submissions put - although as I understood the submissions not particularly strongly - that the court could make a finding of special circumstances based on a need for ongoing supervision. I am of the opinion that the period on parole with the statutory ratio applied will provide sufficient time for the supervision of the offender. In the circumstances of this case I do not perceive a case for a finding of special circumstances and I decline to make such a finding. The end result of the sentence is that the non-parole period is ever so slightly less than 75% of the total sentence. This is to do with mathematical calculations rather than a finding of special circumstances
[11]
Sentence
In respect of the offence to which the offender pleaded guilty he is convicted.
Consequent upon that conviction the offender is sentenced to a non-parole period of 12 years and 2 months to commence on 11 April 2019 which will expire on 10 June 2031. The balance of term of 4 years and 1 month will commence on 11 June 2031 and will expire on 10 July 2035.
The offender will be eligible for release at the expiration of the non-parole period and I recommend that release.
[12]
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: 18 March 2020