R v Rose

District Court of NSW|2022-05-06|Before: Mr P, Fagan J, Wright JJ

Solicitors: Solicitors for Public Prosecutions (Crown) Pollack Greening & Hampshire Solicitors and Conveyancers (Offender) File Number(s): 2020/00311244

sentence

The offender, Colin Rose, entered a plea of not guilty to the principal count in the indictment presented at Grafton District Court on 15 February 2022, namely a charge of maintaining an unlawful sexual relationship with a child contrary to the provisions of s 66EA(1) of the Crimes Act 1900 (NSW). The indictment also contained three alternative counts which were particularised charges of unlawful carnal knowledge. The offender entered a plea of guilty to count 4 which was one of the charges of unlawful carnal knowledge pleaded as an alternative to the principal count of maintaining a sexual relationship with a child.
The matter proceeded to trial and on 22 February 2022 the jury returned a verdict of guilty with respect to count 1, the charge of maintaining an unlawful sexual relationship with a child. It was unnecessary in that circumstance for the jury to return verdicts with respect to the alternative counts.
The offence under s 66EA(1) carries a maximum penalty of life imprisonment. There is no standard non-parole period. The maximum penalty was increased from 25 years to life imprisonment in 2018. The nature of the offence was also changed at that time. The maximum penalty provides a yardstick to which regard must be paid in determining an appropriate sentence.

FACTUAL BACKGROUND

The victim, who will be referred to by a pseudonym, Ms Fay White, was, at the time of trial, a mature woman in her fifties. She gave evidence that she had grown up in Grafton in a loving family with an older brother and a younger sister. When she was aged about 11, the previously happy family suffered a major disruption when an extra-marital affair which was being carried on by her father was discovered by Ms White's mother. Her parents consequently separated.
Following the break-down of the parental marriage, the victim's mother became close friends with the offender's wife. The two families, namely White and Rose, started spending a lot of time together. The offender provided a car for the victim's mother and the victim's older brother started working with the offender in his mechanical business. The Rose family included two children who were broadly similar ages to the White children. The son was a similar age to Fay White and her slightly older brother whilst the Rose daughter was somewhat younger.
Ms White gave evidence, which I accept, that commencing at around Easter 1980 when she was 12, the offender took his own son, as well as Fay White and her brother, on regular overnight weekend camping trips.
The victim described the offender as being a father figure to her and she described the development of a trusting relationship between them. She gave evidence about going camping with the two boys, namely her own brother and the Rose son, as well as with the offender on most weekends. She similarly described the two families getting together at a social club at a local hotel on most Friday evenings. She also described attending the Speedway at Grafton Showground with the offender either monthly or every couple of months.
Ms White gave a description of being given responsibility when camping to assist in doing the cooking and other tasks which made her feel like she was "grown up". She described the three children being given alcohol to drink when they were camping.
Ms White described the offender being affectionate towards her and giving her cuddles and rubbing her arm in what she described as a non-threatening way. She described feeling comfortable in the offender's presence because of his affection and the way in which he gave her responsibility. She perceived it as, in effect, a normal father-daughter situation. She gave detailed evidence of the offender touching her on the leg or rubbing her hand surreptitiously when they were driving to the camping trip.
In due course, she described an occasion where something more sexually overt occurred. She thought it was about the month of July after she had turned 12 earlier that year when she and her brother were at the offender's house in Grafton where they were watching fireworks from the veranda. At some time after the boys had gone inside the house, the offender held her hand and started kissing her passionately. She described that she did not really know what kissing was at the time but that it was passionate and he kissed her on the mouth. Shortly after, he took her into the backyard where he laid her on the grass beside the shed and had sex with her. She said that she was very naïve at the time and had no idea what sex was. She said that at 12 she had commenced having her monthly period but had no understanding of physical sex and had never had any sexual experience previously.
Ms White said that although with retrospect she had lost her virginity on this occasion and thought that she would have bled, she did not know whether she did bleed or not, nor whether the offender had ejaculated as she was on wet grass at the time. She said that she did not know what was happening at the time but that his penis was inside her and then it was outside her. She said he then just got up and went back inside and she also got up and went back inside. This was the first time that she had had sexual intercourse with the offender.
This incident was relied upon by the Crown as a particular and specific incident which gave rise to the alternative count in the indictment - Count 2.
I am satisfied beyond reasonable doubt that the incident described took place.
Ms White gave evidence that her mother in due course commenced a new relationship with a different man in Grafton. Her mother's involvement with her new partner meant that the two children spent even more time with the Rose family and with the offender in particular. She described the social club at the hotel on Friday nights and that on every Friday night that she could remember for a long time, the offender would come to her house at about midnight after everybody including the children had been drinking alcohol. She said, "he just helped himself in, come to my bed, have sex with me and leave." She said that that happened every Friday night that she could remember for a very long time.
Ms White described that the offender always worked on Saturday mornings and that she and the two boys would then go camping with him on a Saturday night. She described that on a regular basis whilst they were camping he would just "come into my tent, have sex with me and leave, go back to his own tent." Whilst the precise number of occasions is not able to be determined with specificity, I am satisfied beyond reasonable doubt that there were incidents of regular sexual intercourse both at her home and on the camping trips.
Ms White gave specific evidence of numerous attendances at the Speedway which was held at Grafton Showground. She gave particular evidence of an incident when he took her away from the barbecue area after one of the Speedway meetings and had sexual intercourse with her on the ground under the raised metal seating some distance away from that area. She said that she was positioned on the grass on her back and described the act of intercourse. She said that on other occasions at the Speedway, he would hold hands, give her a cuddle, or give her beer, but that the sexual intercourse that she described had only occurred on the one occasion at the Speedway.
This particularised incident was the basis for Count 3 in the indictment as an alternative to Count 1. I am satisfied beyond reasonable doubt that it occurred as she described.
The third specified incident which Ms White described was an occasion where the offender had taken her for a drive in his car late at night. Her recollection was that she was 12 years of age and she thought that it was "cool" because she was driving in his car at about midnight. She described him taking her to his home where they again had sex in the backyard.
She described the offender as being a father figure because of the absence of her own father although she said that sometimes she thought that he was her boyfriend. She described other occasions without specificity where after going driving with the offender and the boys at the end of the day he would take her and lie her on the ground, have sex with her and then get up and go. Ms White said that this ongoing sexual relationship lasted for 18 months to 2 years. She did not tell any adults what was happening at that time.
She then described an incident which occurred just after she had turned 14. There was a barbecue held at a particular location on the old Glen Innes Road and in the course of that barbecue, the offender pulled Ms White aside and asked her if she was pregnant. She described to the jury, in terms which I accept, that she was absolutely horrified. She said, "It was the first time that - in my head that I've thought that that was the sex that was happening. I knew that it was sex that he had been doing to me, but I didn't know that it was the sex like mum and dad would have, as in I could fall pregnant. I did not think that that was the type of sex. I didn't understand until that point. I was absolutely horrified."
Ms White described that as a consequence of that conversation, during the rest of that night she kept away from the offender and, as she described it, stuck to her mother's new partner "like glue." However, notwithstanding her reaction to the conversation about being pregnant, she gave evidence that intercourse with the offender continued to occur.
She described going with him to Ulmarra in his car on an occasion when he had sex with her in the car. She described going out to see a property that the offender had purchased with his then new wife. She said that they had intercourse on that occasion also. She also described an occasion at the Wooli Caravan Park where they had sexual intercourse before going back to a barbecue or whatever it was that was being held at the time. She described a further occasion when her brother and the Rose son were riding motorbikes and she and the offender were in the buggy whilst the boys were further ahead. He had stopped the car and had sex with her on the sand before getting back into the buggy and catching up with the boys. She described, "It just seemed like - seemed like it was nothing to him. It was just have sex and leave, and that was it."
With the exception of the incident which she linked temporally with the acquisition of a new home by the offender, I am satisfied beyond reasonable doubt that these further acts of intercourse also occurred. My reservation with respect to that particular identified incident derives from its apparent date which would appear possibly inconsistent with the date identified as the cessation of the relationship.
Ms White gave evidence that the intercourse with the offender had stopped some time prior to the death of a cousin of hers who had passed away at the age of 17 in January 1983.
Accordingly, I am satisfied that the unlawful sexual relationship with the victim when she was a child extended over a period of time of approximately two years.

ASSESSMENT OF OBJECTIVE SERIOUSNESS

The provisions of the original s 66EA were the subject of general observations concerning sentences for the offence of persistent sexual abuse of a child. In Burr v R [2020] NSWCCA 282, Johnson J, with whom Leeming JA and Rothman J agreed, identified relevant factors (specifically by reference to the old provision) that would bear upon an assessment of the objective seriousness of the offence. These included: 1. the number of sexual offences which were committed on separate occasions by the offender against the victim; 2. the nature of the sexual offences committed by the offender against the victim; 3. the age of the victim at the time of the ingredient offences; 4. the period of time during which the ingredient offences were committed against the victim; 5. the age of the offender at the time of the commission of the ingredient offences against the victim and the age differential; and 6. the context in which the offender had access to the victim to commit the ingredient offences over the period of time which constituted the s 66EA offence.
In GP (a pseudonym) v R [2021] NSWCCA 180, Cavanagh J (Brereton JA and N Adams J agreeing) said at [64]: "Both the new and old sections are concerned with persistent sexual abuse of a child. Whilst the wording of s 66EA has changed since Burr, there is nothing in the new provision which might suggest that the factors identified by Johnson J as being important to assessing objective seriousness under the old provision would be different when sentencing under the new provision."
By reference to the factors identified in Burr v R, there were repeated sexual offences committed on separate occasions during the entire course of the relationship extending over a period of approximately 2 years. Whilst the precise number of acts of intercourse are properly described as indeterminate, the evidence given at trial by the victim clearly established repetitive acts during that time. The relationship can properly be viewed as a course of conduct involving literally scores of separate acts of intercourse. As already noted, the period of time in which the ingredient offences occurred was approximately 18 years and the victim was aged between about 12 and 14 years at the time. The age differential was not insubstantial, the offender being aged between approximately 33 and 35. The offender had access to the victim in what was described effectively as a father/daughter relationship.
The Crown's submissions point to the circumstance that the victim was a vulnerable young girl and that although the offender did not fill the position of father or stepfather, he was frequently trusted with the care of the child. He took advantage of her disrupted family life to install himself in a position of trust.
An overall consideration of these factors leads to a conclusion that the objective seriousness of the offending conduct falls within the upper portion of the mid-range.

VICTIM IMPACT STATEMENT

The victim read aloud a Victim Impact Statement. I have no difficulty in accepting the contents of that Victim Impact Statement which describes harm of the kind that could reasonably be expected to arise from the offence which has been established against Mr Rose (R v Tuala [2015] NSW CCA 8 at [79]). Ms White exhibited considerable resilience and bravery both in her preparation of the Victim Impact Statement and in her decision to read it aloud. She described having consulted numerous mental health care professionals and doctors over the past decades in the hope of addressing some of the personal problems which she listed, including anxiety, depression, low self-esteem, trust and confidence issues and also feelings of guilt, regret and self-blame. Ms White expressed the struggle which she feels to present anything to friends or family other than what she perceives to be a bleak version of herself. She described her difficulties with connecting with people and how she finds it hard to trust people. She has been overprotective of both her children and now her grandchildren to the point of not allowing them to have sleepovers or unsupervised visits to friends' houses. She has had continued problems maintaining a healthy sexual relationship with her own husband and described the experience in flashbacks and what she described as the return of body memories whilst engaging in sex. She described promiscuous behaviour and recklessness throughout her teenage years after the cessation of the relationship which continued until she got married. She concluded her statement by saying: "I mourn the loss of my missing childhood every day. I was forced into a situation where my innocence was stripped away. My childhood died the day you started your abuse."
Ms White's statement underscores the experience of the courts which were appropriately summarised in R v Gavel (2014) 239 A Crim R 469 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 The Queen [2013] NSWCCA 255 at [52]. In R v G [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 The Queen (2011) 32 VR 361; Clarkson v The Queen 212 A Crim R 72 at [3], [26]-[39]."
As I have already noted, the Victim Impact Statement in the present matter reinforces the court's experience of the type of harm caused by the sexual abuse of a child.

AGGRAVATING FEATURES

Whilst taking care to ensure that identifiable elements are not double counted, that is to the extent that they form a constituent part of the surrounding circumstances they should not be separately considered as aggravating features, a number of particular matters should be noted. Clearly, the offender was in a position of trust and his actions were a breach of that trust. The child victim was 12 and 13 years of age during the offending and a specific factor of aggravation is that many of the sexual assaults and acts of intercourse took place in her own home. The injury and emotional harm caused by the offence was substantial, although, as I have already noted, did not exceed what might reasonably be anticipated in such circumstances.
Whilst there is clear evidence in the course of the trial about the victim and the other children who went camping being provided with alcohol, I am not of the view that the court could safely conclude that the alcohol was provided in order to facilitate the offender having sexual intercourse with the victim.

MITIGATING FACTORS

The offender has no prior criminal record and is of prior good character. Section 21A(5A) of the Crimes (Sentencing Procedure) Act states: "In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence."
Prior to the introduction of this legislative requirement, an offender's prior good character was held to be of less significance in child sex cases than in other types of offences: see R v PGM (2008) 187 A Crim R 152. I am satisfied in the present matter that the good character and lack of previous convictions at the time of the commission of the offending conduct was of assistance in the commission of the offence by reason of the circumstance that had he lacked such good character or if he held previous convictions, such circumstance would likely have been known in the country town in which he resided and he likely would not have been placed in a repeated position of trust in the care of the child.
However, his subsequent blameless conduct over the following 40-odd years and his good character during that time is a factor in respect of which the court affords him some credit.
In the Defence written submissions, the circumstance of the offender leading a blameless life since the commission of the offence should lead to a conclusion that he is unlikely to reoffend. His prospects of rehabilitation were submitted to be good. However, the psychological report which was anticipated would be tendered did not materialise and the court is not in any position to form a concluded view about the offender's prospects of rehabilitation other than noting that his age when he might ultimately be released, combined with his lack of subsequent offending, would tend to support a conclusion that he would be unlikely to reoffend.
It was further submitted on his behalf that the court should give weight to an element of extra-curial punishment. The basis for such a conclusion was expressed in the following terms: "Grafton isa small country town. The offender is well known in the community, having operated a mechanical and service station in the town for decades. The fact of his being found guilty of this offence will become generally known. He and his family are likely to suffer a strong backlash from the community for this offence."
The reaction of others in the community towards the offender or members of his family are potentially outcomes which reflect the consequences of his commission of the offending behaviour. Such community reaction or, indeed, disapprobation does not fall within a proper description of extra-curial punishment. It does not operate as a mitigatory factor.
A factor which requires a nuanced consideration is the advanced age of the offender. At common law an offender's age has been considered a relevant subjective consideration in passing sentence (see R v Yates (1984) 13 A Crim R 319). However, together with a consideration of other subjective factors, a court is required nevertheless to impose a sentence which reflects the objective seriousness of the offence. Where serving a term of imprisonment is likely to be more than usually onerous, age or the necessity of any particular medical treatment may provide a basis for some level of discount to an appropriate sentence. However, as Wood CJ at CL said in R v McLean (2001) 121 A Crim R 484 at [44]: "Moreover, while the age of a person standing for sentence needs to be taken into account, as do any other circumstances such as the classification of the offender, or illness, that may make imprisonment more onerous, lest a punishment be imposed that is out of proportion to the objective and subjective criminality involved, this cannot give rise to an expectation that the elderly cannot fend with relative impunity."
Similarly, in R v Holyoak (1995) 82 A Crim R 502, Allen J said, at 507: "It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced age(d) of the offender, that he well may spend the whole of his remaining life in custody."
In the present matter the age of the offender will be taken into account in the instinctive synthesis leading to a sentence which I will shortly pass.
It is to be noted that the offender pleaded guilty to one of the counts in the indictment which alleged carnal knowledge. In his evidence at trial he asserted that an act of intercourse had taken place on one occasion only and in circumstances that differed substantially from the account given by the victim and from the particularised circumstances alleged in the indictment with respect to Count 4.
His admission of at least one act of intercourse was, in my view, a recognition of the inevitable in light of the recorded pretext phone call and also in light of the revelation of his sexual interaction with the victim which have been exposed, at least within the family group, in 1983. In such circumstances the plea was not a true reflection of remorse or contrition and I accordingly give it little weight as a mitigatory factor. However, the trial proceeded in a fashion whereby the offender permitted a substantial narrowing of issues and the trial, accordingly, proceeded both efficiently and expeditiously. The Crown submits that such cooperation with the administration of justice should be appropriately recognised in accordance with s 22A of the Crimes (Sentencing Procedure Act) 1999 (NSW), and I do so.

SUBJECTIVE CASE FOR THE OFFENDER

The offender, Colin Rose, was born on 5 September 1946. He is currently 75 years of age. He did not give evidence in the sentence proceedings and an anticipated psychological report referred to in the defence written submissions has not been produced. The court's knowledge of his subjective background is restricted to what can be gleaned from his evidence in the trial, from medical reports which have been tendered, and from descriptions about him from other witnesses in the trial.
The offender would appear to have conducted a motor mechanic business in Grafton for effectively all of his adult working life. In the early 1980s, he was living with his then wife, Shirley, and his two children, a boy and a girl, at a property in Southgate Road, Grafton. At the time of the offending conduct, he was between the ages of approximately 33 up to 35 years of age. Based on the evidence of the victim at trial, she told her mother about having had sex with the offender in what would appear to have been approximately 1983. According to the victim, her mother told the offender's wife who confronted him with the allegation. The offender's marriage subsequently broke up.
Additional evidence during the trial indicated that the offender subsequently remarried.
As well as pursuing his occupation running a mechanical workshop, he would appear to have been heavily involved with his children while they were growing up and to have been involved in the sport of Speedway racing.
Little else is known regarding his personal life.
He does, however, have no recorded criminal convictions.
A report from a retinal and cataract surgeon indicates that he had a detached retina in his left eye in 2001. He subsequently had a detached retina in his right eye which required surgical repair in 2010. He subsequently had treatment for cataracts in his right eye in 2011 and in his left eye in 2013. At his last review by the eye surgeon in March 2021, he did not require any further medication or treatment and his ocular health and visual acuities remained stable.
Included among the medical reports which have been tendered is a discharge referral from Ballina District Hospital. That referral casts some light on the medical background of the offender. It indicates that he had originally been treated at St George Hospital in Sydney following infective endocarditis in September 2010. Endocarditis is inflammation of the membrane that lines the heart. He would also appear to have suffered an embolic stroke which had culminated in cardiac bypass surgery and a mitral valve replacement being performed at St George Hospital on 28 September 2010. The notes indicate that he then had a prolonged Intensive Care Unit admission with a coma lasting some 3 weeks. During that time, he lost 28kg and became very deconditioned.
Following his discharge from St George Hospital, he was readmitted for rehabilitation services to Ballina District Hospital in November 2010 where he remained for over 3 weeks. At that time he was suffering decreased upper and lower limb coordination and substantially diminished mobility. He was not able to stand balanced and had a substantial decrease in endurance. The notes indicate that he also suffered from non-insulin dependent diabetes. His mobility was also affected by a total right knee replacement which he had undergone some 30 years previously. It would appear that this may have been connected with a motor vehicle accident. The hospital notes also recorded a gun shot wound to the right elbow which would appear to have led to decreased dexterity in his right hand.
During his time at Ballina Hospital in November and December 2010, he suffered from persistent tachycardia which was treated with a variety of medications. Neuropsychological testing demonstrated some frontal lobe white matter changes which resulted in some psychomotor slowing and slowness in switching attention. At that time, he agreed not to drive a vehicle for the next 6 months.
A cardiac review carried out in June 2019 when the offender was 72 years of age indicated that despite a coronary angiogram having been performed in August 2014 which revealed "native double vessel disease", the offender was described in June 2019 in the following terms: "He feels better than he ever has and he tells me that he has not had this much energy in 20 years."
He was certified as fit to drive and the only treatment was a variation of one of his regular medications.
In June 2020, he was again reviewed by the same cardiologist. He was again described as "feeling quite well" although he had had some swollen feet earlier that year. He was described as "doing well from a cardiac point of view." He was to continue with his current medications and to be reviewed in a further 12 months.
In February 2021, he was again reviewed by the cardiologist. He was described as "feeling very well with no chest tightness, pain, palpitations or syncope". His exercise levels were described as remaining excellent. His ECG was satisfactory and he was described as "doing remarkably well from a cardiac point of view despite his significant medical history." He was again to continue with his medications and to be reviewed in a further 12 months.
In August 2021, he was referred back to the cardiologist, Dr Tanya Stewart, as a result of having experienced palpitations and dyspnoea (breathing difficulties) for the previous 6 days. He had also had an episode of pneumonia for which he had been admitted to hospital. The cardiac examination including a further ECG were acceptable and his cardiac function was described as "good". The cardiologist again indicated no requirement for further review for 12 months unless any problems arose in the meantime.
The only more recent document in the tendered material is a medication summary dated 4 April 2022 which sets out a comprehensive list of his current medications.

COMPARATIVE CASES

Reference to the statistics maintained by the Judicial Commission of NSW and to other cases dealing with offenders for offences under s 66EA(1) can contribute to the assessment of just where in a broad range of objective seriousness, a particular matter might be perceived to fall. Each case, of course, turns on its own specific facts and an overview of so-called comparative cases provides a general indication of range.
I have borne those considerations in mind in the examination of various comparative cases.
Mills v R [2017] NSWCCA 87 was an appeal against a sentence imposed at first instance of 16 and a half years imprisonment with a non-parole period of 12 years and 4 months in relation to one offence contrary to s 66EA(1) of the Crimes Act 1900 (NSW). That sentence followed a plea of guilty.
The offender was the father of the victim and had penile-vaginal intercourse with his daughter over a 3-year period when she was between the ages of 11 and 14. The offender himself was aged between 38 and 41. The child had contracted chlamydia from her father and the offences had occasioned substantial psychological and emotional harm.
The sentencing judge, Syme DCJ, found that the offending conduct fell within the high range of objective seriousness. The maximum penalty at the time was 25 years and the sentencing judge found an undiscounted sentence of 22 years was appropriate. The 25% reduction with respect to the guilty plea led to the ultimate sentence of 16 and a half years.
The ground of appeal challenging the finding at first instance that the offending behaviour fell within the "high range" was not upheld. RA Hulme J embarked upon a discussion as to terminology and how one described an offence falling above mid-range and concluded that the term "worst case category" was more readily understood. His Honour adopted what the High Court had said in The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 in which the High Court indicated that such an offence was an instance of the offending which was so grave that it warranted the imposition of the maximum prescribed penalty.
RA Hulme J, with whom Leeming JA and Beech-Jones J agreed, concluded that a starting point of 22 years was commensurate with an assessment that the matter fell within the realm of the "worst category".
Expressed more definitively, RA Hulme J said that the offending was "above the mid-range but not so grave as to warrant the maximum penalty, or close to it" (at [72]).
In proceeding to resentence, the Court of Criminal Appeal commenced the undiscounted sentence at 18 years and imposed a sentence of 13 years 6 months with a non-parole period of 10 years.
R v GP [2019] NSWDC 493 was a sentence proceeding in respect of 1 offence contrary to s 66EA(1) and a second offence relating to an act of indecency on a 13 year old contrary to s 61M(2) of the Crimes Act 1900. The victims were sisters and the offender had been in a relationship with their mother for some 10 years. In 2013, the offender and the victims' mother were to be married. The offender was 35 years of age at the time and the first victim was 12 years of age. On the day before the wedding, the offender had penile-vaginal sexual intercourse with the first daughter. Over the following period of approximately 7 months, there were numerous incidents of penile-vaginal intercourse. The victim could not remember the detail of the multiple occasions on which this occurred but particularised four specific events which had occurred during the maintenance of the unlawful sexual relationship.
The Agreed Facts indicated that on at least one occasion, the offender had ejaculated inside the vagina of the child. Other particularised acts included acts of fellatio and cunnilingus.
The second count to which the offender pleaded guilty related to an act of indecency on a second stepdaughter who was 13 years of age at the time.
The offender had a past criminal history which included matters of assault, contravention of domestic violence orders, resisting police, assaulting police, damage to property and possession of prohibited drugs. He had been sentenced variously to full time imprisonment and 2 suspended sentences. There were, however, no matters on his criminal history after 2008 and no matters of a sexual nature on his record. The sentencing judge, Lerve DCJ was satisfied that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 were enlivened. There was detailed evidence of remorse and the offender was assessed as having an average risk of sexual reoffending. The sentencing judge concluded that the unlawful relationship offence fell within the mid-range of objective seriousness. The second charge of indecent assault was found to be at the lower end of the mid-range of objective seriousness.
GP was sentenced to 13 years 6 months with respect to the s 66EA(1) offence. The starting point had been 17 years with an allowance of approximately 20% for the utilitarian value of his plea of guilty. He was sentenced to a non-parole period of 9 years and 9 months. The offender was sentenced to 19 months with a non-parole period of 14 months which was backdated from the time he went into custody and which sentence had expired by the time of sentence being passed. The maintenance of the unlawful relationship sentence commenced after 6 months of the indecent assault sentence culminating with an effective total sentence of 14 years with a non-parole period of 10 years 3 months.
An appeal to the Court of Criminal Appeal was successful. In GP (a pseudonym) v R [2021] NSWCCA 180, the Court of Criminal Appeal found error in the sentencing judge at first instance having referred to the facts of the offending as including "ejaculation on some occasion". The Crown conceded that such error had been made by Lerve DCJ in circumstances where the Agreed Facts mainly referred to ejaculation on "at least one occasion". In proceeding to resentence, consistent with Kentwell v The Queen [2014] HCA 37; 252 CLR 601, the court accepted all of the factual findings of the judge at first instance with the exception of the reference to the act of ejaculation. The court received additional evidence including the offender having successfully completing a number of programs since he had been placed into custody. The affidavit which was received also deposed to the circumstances of the offender having been subject to vilification and abuse whilst in custody due to the nature of his offences and having been subjected to a physical assault which led him to be hospitalised and treated for a fractured skull and cheek bone.
In proceeding to resentence, the court made no reference to extra-curial punishment. Cavanagh J, with whom Brereton JA and N Adams J both agreed, at [80]: "I have regard to the further evidence of the applicant but it does not seem to me that this further evidence has any significant impact on the applicant's subjective case. Not all additional evidence relied upon on re-sentence leads to different findings on the offender's subjective circumstances."
The court made no reference to the provisions of s 66EA(8) but noted that the offender was not to be sentenced as if being sentenced for each individual act but rather for the overall criminality of the offending which involved unlawful sexual acts over differing periods and different places. The court concluded that a starting point would have been a sentence of 15 years which reduced to 12 years based on a 20% discount. A non-parole period of 8 years and 7 months was imposed. The commencement date for the sentence, involving partial accumulation with the indecent assault offence, was imposed in the same terms as the judge at first instance.
In R v TH [2019] NSWDC 793, the offender pleaded guilty to one charge of historical sexual assault with a sibling who had been 18 years of age. That offence had occurred between ten and 12 years earlier. The particular offence carried a maximum penalty of eight years.
A second charge pursuant to s 66EA(1) related to an unlawful sexual relationship with a ten-year-old child during a period of approximately nine months. When the offending occurred in 2014 to 2015, the maximum penalty had been 25 years. It had been increased retrospectively to life imprisonment following the 2018 amendments. The individual offending included a number of incidents of cunnilingus and some four instances of penile/vaginal intercourse and one of penile/anal intercourse.
A plea of guilty was entered shortly before trial and a discount of 12½% was allowed. The offender had been 27 years of age at the time of the 66EA offences and as I have indicated the victim was ten. The act of intercourse with the offender's sibling resulted in a sentence from Bennett SC DCJ of three years, seven months as an indicative sentence.
The s 66EA offence resulted in a nine year indicative sentence. His Honour imposed an aggregate sentence of ten years including a non-parole period of six years, six months.
In R v RM [2020] NSWDC 52, the offender pleaded guilty to one charge contrary to s 66EA(1). The relationship included 14 identified unlawful sexual acts. The victim was the biological daughter of the offender and the ongoing relationship had extended over a period of approximately seven or eight years between about 2010 and 2018. The victim was aged between five and 12 years of age. The offender had been aged between about 30 and 37 or 38 years of age.
The individual offences included incidents of aggravated indecent assault, acts of cunnilingus and fellatio and other sexual contact which was described as "generalised conduct", which individually were a variety of acts of indecency or indecent assault.
There were also instances of masturbatory ejaculation and one occasion of penile/vaginal intercourse. There were other occasions of digital penetration.
Lerve DCJ was firmly of the opinion that the matter before the Court was a serious example of offending contemplated by s 66EA(1) of the Crimes Act. He was of the opinion that the offending was "more than slightly above mid-range but not an example of a worst case".
The sentencing judge described the offender having used his natural daughter "as a sexual plaything for a period of eight to nine years while she was between four and 12 years of age." Whilst there was a Victim Impact Statement there was no additional material from treating health professionals or psychologists.
An allowance for assistance by way of an Ellis-type discount, pursuant to the statutory provisions of s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), was allowed. This was assessed as 10% which together with the 25% for the guilty plea led to a combined discount of 35%. Lerve DCJ determined a starting point for the s 66EA(1) offence at 25 years. The maximum penalty had been increased to life imprisonment. A 35% discount resulted in a sentence of 16 years three months with a non-parole period of 12 years two months.
R v A [2021] NSWDC 232 concerned an offender who was approximately 55 years of age when he commenced an unlawful sexual relationship with the victim who was a child of 11 years of age. The offender was the great uncle of the victim being an uncle of her maternal aunt. He was involved in training the victim and her sister in martial arts. The sexual acts committed during the maintenance of the unlawful sexual relationship included penile-vaginal intercourse on numerous occasions over a period of approximately 3 and a half years. The offender pleaded not guilty and stood trial before a jury at Taree. The evidence of the victim was that she had been raped when she was 11 turning 12 and thereafter had been raped almost every week when she was being taken home from martial arts training.
The sentencing judge, Hatzistergos DCJ, was ultimately satisfied beyond reasonable doubt that there were 8 particularised foundational sexual offences committed against the victim on 5 separate occasions. After analysing the detail of the separate sexual acts, the breach of trust and other surrounding circumstances, his Honour was satisfied that the offence fell "around the mid-range of objective seriousness".
The offender had no prior criminal convictions and had been a trusted and respected elder in an Aboriginal family unit. Detail of not inconsiderable disadvantage and childhood deprivation was set out in a psychological report and in accordance with the principles expressed in Bugmy v R [2013] HCA 37; (2013) 249 CLR 571, Hatzistergos DCJ found that the offender's background was such that it was required to be given weight in sentencing by reducing the offender's moral culpability. The offender was an older man with significant physical health factors, being approximately 61 years of age at the time of sentence and the sentencing judge found that his time in custody would be more onerous as a consequence.
The offender was sentenced to 12 years imprisonment with a non-parole period of 7 years.
R v NK [2021] NSWDC 275 concerned an offender who was found guilty following a trial by jury in respect of 1 count contrary to the provisions of s 66EA(1). The unlawful sexual relationship was maintained between the offender when he was aged 36 and the child who was in the position of a stepdaughter was 13 or 14 years of age. The relationship continued over a period of approximately 13 months between May 2018 and June 2019. The offender had lived with the victim's mother and her other children for approximately 6 years before the unlawful sexual relationship commenced. The sexual misconduct commenced with touching which over a period of months, escalated to digital penetration of the child's vagina and acts of cunnilingus. Such conduct occurred regularly over the following 5 to 6 months before culminating in an act of penile-vaginal intercourse in June 2019. It would appear that following the act of penile sexual intercourse on that occasion that complaints were made leading to the intervention of the police.
The offender had no prior criminal record and a number of testimonials that otherwise spoke of his excelled good character. The established length of time of the unlawful sexual relationship was submitted on the evidence to have not exceeded 6 months. There was an absence of remorse and the offender maintained his assertions of innocence. The sentencing judge was ultimately satisfied that the touching prior to the end of December 2018 was part of a process of grooming and that the sexual touching which escalated to the conduct I have earlier described occurred during a period of approximately 6 months. The sentencing judge, Mahony SC DCJ found that the offending fell below the mid-range of objective seriousness and in the upper end of the low range for such an offence. The offender was sentenced to 8 years imprisonment with a non-parole period of 4 years and 6 months.
In R v Jarvis (a pseudonym) [2020] NSWDC 396, the offender pleaded guilty to a single charge contrary to s 66EA of the Crimes Act. The offender was the stepfather of the victim. The sexual offending commenced when the child was about 10 or 11 years of age. Inappropriate touching constituting indecent assaults initially commenced in 1997. The conduct gradually increased in sexual seriousness, and from 1998 onwards, the offender regularly touched the child on her vagina.
From 1999 onwards, he made her grab his penis while continuing to touch her. In due course, there were acts of simulated sexual intercourse which culminated in three or four occasions of digital penetration. Haesler SC DCJ described the relationship between the offender and the victim as follows: "Stepfathers are expected to protect and nurture, not abuse children in their care. A stepfather is in a particular position of trust and that trust was breached. The child complainant was in a position where she was expected to obey and accept direction from the offender. She was in no real position to do anything else other than to submit to his advances."
In the circumstances of that particular matter, his Honour noted that both counsel accepted that were he to try and apportion some range to the matter that it would fall below the middle of the range of objective seriousness.
His Honour made reference to a number of comparatives to which he was taken which included matters which were objectively less serious (Eacott (a pseudonym) v R [2019] NSWCCA 158) and also cases at the other end of the spectrum (R v DR [2018] NSWDC 405; and IS v R [2011] NSWCCA 142). He accepted that the present offending before him fell below the mid-range.
At the time of sentence, the offender was 71 years of age. The offending conduct had occurred 20 years earlier.
But for the plea of guilty, his Honour would have imposed a head sentence of 13 years that was reduced following the discount to a head sentence of 9 years 9 months with a non-parole period of 5 years 5 months.
In R v Graham (a pseudonym) [2020] NSWDC 747, Haesler DCJ SC again dealt with a further offender charged pursuant to s 66EA. This was again an offence between a father and his own daughter. The sexual activity had commenced when the child was eight and included penile/vaginal sexual intercourse when she was eight or nine. Acts of similar intercourse as well as oral intercourse continued thereafter. By the time she was 12 to 14 years of age, these acts were occurring regularly. The offender had been approximately 30 years of age when the sexual activity had commenced in about 2012. It had extended over a period of about 6 years.
The facts in that matter also included occasions of digital penetration and masturbation to the point of ejaculation. A table of maximum penalties for the variety of different sexual offences comprising the 66EA charge, was included in the material given to the sentencing judge. The offender in that matter suffered from borderline intellectual disability. His lack of intellectual capacity and other deficits attracted consideration of some of the aspects of DPP v De La Rosa [2010] NSWCCA 155.
His intellectual deficits were likely to make his time in gaol harsher. Haesler SC DCJ, would have imposed a sentence of 20 years imprisonment but for the plea of guilty. Following a 25% discount, a sentence was imposed of 15 years with a non-parole period of 11 years.
A further case which was decided relating to s 66EA(1) in recent times, was a sentence by Mahony SC DCJ in March of this year. In R v O'Toole No 5 [2021] NSWDC 64, O'Toole was found guilty following trial. The offending conduct had occurred more than 50 years earlier when O'Toole had been a school teacher in his early 20s at what would appear to have been a tiny rural school. He had engaged in sexual misconduct with multiple young pupils, all of whom at that particular school had been under ten years of age. A number of them were five, six or seven years old.
Subsequent offending at a different location and a different school occurred with another student who was between 10 and 12 years of age. The various offending sexual assaults, some 16 in number, included acts of indecency and acts of carnal knowledge. Most of the offences carried maximum penalties of 5 years imprisonment, although some had carried maximum penalties of ten years.
An additional count in the indictment had been preferred pursuant to s 66EA(1) of the Crimes Act. The retrospective amendments meant that it carried a maximum penalty of life imprisonment and indeed the offence itself acted retrospectively as it had not existed at the time of the offending.
The victim in the s 66EA offence, had been aged between eight and ten years of age at the time that she attended the first very small school where the offender was her teacher. She was the older sister of one of the other victims and during the period of the unlawful sexual relationship, the offender was aged approximately 20 to 22 years of age.
The acts included two instances of the child masturbating the offender, one incident of simulated sex with the offender moving his penis back and forth in the area of her vagina, one incident of fellatio and one identified incident of an aggravated indecent assault by placing his hand on her vagina whilst swimming. The unlawful sexual relationship was maintained over the period of approximately two years while he was the child's teacher, and he also boarded with the family of the victim on their farm.
Counsel for the offender had submitted that the offending conduct, giving rise to the 66EA offence fell below the mid-range. Counsel for the Crown submitted that the focus should be on the relationship and the time period of the relationship, in addition to taking into account the conduct involved in the acts. The Crown submitted that the offending was mid-range.
Mahony SC DCJ found at [115]: "Having regard to the number of offences involved, the nature of those offences and the maximum penalties prescribed for them, the age of the victim KW and the period of time over which the ingredient offences where committed, the age differential between the offender and the victim and the context in which the offender had access to the victim, both as a boarder in her family home and as the sole teacher at her school, I find that the offending, pursuant to count 6, was very serious criminal offending within the mid-range for an offence, pursuant to 66EA(1) of the Crimes Act."
Mahony SC DCJ, ultimately proceeded by way of an aggregate sentence. He provided indicative sentences which ranged from 1 year to 2 years 6 months with respect to 12 of the substantive offences, indicative sentences of four years, five years and eight years with respect to a further three substantive offences relating to other victims, and an indicative sentence of ten years with respect to the offence under s 66EA(1) relating to that particular victim. The aggregate sentence imposed was 15 years imprisonment with a non-parole period of eight years, six months. The offender had been 74 years of age when he went into custody.
In R v DAW (No. 3) [2021] NSWDC 383 a 73-year-old offender was convicted of historical child sexual offences against his own daughter when she was a child, aged between 7 and 15 years old, during the period 1979 to 1988. The offender had been aged between 33 and 41 years of age at the time. He was convicted after trial of one offence of maintaining an unlawful sexual relationship with the victim contrary to the provisions of s 66EA(1) of the Crimes Act 1900. In addition, he was charged with a number of substantive offences including assault occasioning actual bodily harm and sexual course without her consent when she was about 16 years of age and a more recent offence of having sexual intercourse with her in 2017 when she was 44 years of age.
The victim had been admitted to care in a mental health unit following the incident in 2017. During her time in the mental health unit, complaint was raised about the sexual relationship she had had with her father and police became involved. The offender attempted suicide and in due course stood trial before a jury. He had no prior criminal convictions and had had steady employment throughout his adult life. He had no underlying psychological or psychiatric problems and had never been on medication or received psychological or psychiatric assistance before the one and only suicide attempt in 2017 following the revelation of his relationship with his daughter. He maintained assertions of his innocence and consequently displayed an absence of remorse. A psychological assessment indicated a degree of cognitive decline.
The sentencing judge, Abadee DCJ, imposed an aggregate sentence of 17 years with a non-parole of 10 years, two months and 14 days.
The indicative sentence with respect to the s 66EA(1) offence was 15 years.
Abadee DCJ found that having regard to the very young age of the victim, the corresponding age differential with the offender, the frequency and nature of the sexual acts and the overall period during which the relationship extended, the offender's conduct was objectively slightly above the mid range for offending of this kind. Such an assessment did not take into account circumstances of aggravation or mitigation.
R v Bradshaw (a pseudonym) [2021] NSWDC 476 was a decision of Colefax SC DCJ in September 2021. The offender was charged with 2 separate unlawful sexual relationship offences contrary to s 66EA(1). The offender was the grandfather of each of the 2 victims. The first unlawful sexual relationship was maintained with a granddaughter between January 2014 and August 2017 when the child was between 7 and 10 years of age. The offender was aged between 62 and 65 years of age. The unlawful sexual acts included touching his granddaughter on her breasts, touching her on the vagina, performing cunnilingus and digital penetration of her vagina.
The second unlawful sexual relationship with a different granddaughter commenced in about January 2016 and continued until February 2020. The child was aged between 5 and 9 years old. The offender was 64 at the commencement of this second relationship. The unlawful sexual acts included touching the child on the breasts, touching her vagina, performing cunnilingus on her and requesting the child to touch his penis.
Pleas of guilty were entered by the offender in this matter.
Judge Colefax SC rejected a submission by Mr Tedeschi QC that the court should sentence only on the basis of two constituent offences satisfying the requirements of the offence under s 66EA(1). The court rejected that submission and proceeded to sentence on the basis of all of the ingredient substantive offences constituting the maintenance of an unlawful sexual relationship.
The subjective case presented on behalf of the offender was manifestly deficient. The sentencing judge observed at [67]: "I do not know where you were born; what your upbringing was like; what your education was like; or anything about your work history or any mental health or physical health history (other than what can be gleaned from the poorly copied Justice Health and Corrective Service records)."
There were, however, affidavits tendered from 3 of the offenders 5 adult children. They spoke of the loving and supportive father he had been to each of them and their intention to continue to support their father as best they could upon his release. The offender did not have any prior criminal record. He gave no evidence on the sentence proceedings and there was no psychological or other expert report. The sentencing judge, with respect to the provisions of subsection 66EA(8), which required a sentencing court to take into account the maximum penalty for the individual unlawful sexual acts engaged in by an accused during the period of the unlawful sexual relationship made reference to the individual maximum penalties of the constituent substantive offences. With respect to the first granddaughter, that included offences carrying a maximum penalty of 10 years imprisonment for the aggravated indecent assault (s 66C(2) and 20 years with a standard non parole period of 9 years for aggravated sexual intercourse with a child under authority (s 61N(1)). With respect to the second granddaughter the constituent substantive offences carried maximum penalties ranging from 7 years to life imprisonment with a standard non parole period of 15 years for the offence of sexual intercourse with a child under 10 (s 66A).
Colefax SC DCJ allowed a 25% discount with respect to each of the indicative sentences which were 7 years 6 months with respect to the first granddaughter and 6 years 4 months with respect to the second child. An aggregate term of 12 years was imposed with a non-parole period of 9 years.

CONSIDERATION

Achieving the right balance between a consideration of the maximum penalty for offences which occurred as long ago as 1980 on the one hand, the need to give consideration to present day sentencing principles rather than those which existed at the time of the offences, the need to impose a sentence for an offence which operates retrospectively and with an increased maximum penalty of life imprisonment, the need to bear in mind that the various aggravating features as well as the mitigating factors including the advanced age of the offender, requires a carefully nuanced approach to the instinctive synthesis.
In light of the circumstances that this is the first time that the offender has served a term of imprisonment and in further of his advanced age I propose to vary the statutory ratio slightly.
Balancing all of these competing and contributing factors you are sentenced to a term of imprisonment for a period of 15 years. There will be a non-parole period of 9 years. The sentence and non-parole period will be back dated to the date on which the offender went into custody, namely, 6 May 2022. Accordingly, the non-parole period will expire on 5 May 2031 and the additional term of 6 years will expire on 5 May 2037.

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: 02 March 2023

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