The offender placed before this Court no less than four reports from mental health professionals: Dr Rodriguez (a psychologist), Dr Canaris, Professor McFarlane AO and Dr Nagesh. Some of these reports, which preceded the trial, appear to have been created to assist the offender with a civil claim, apparently against the RFS.
Part of their reports concerned the offender's background, which is most extensively set out in Dr Rodriguez's report.
The Crown argued that caution should be exercised when considering any of these reports indicating that, but for Dr Rodriguez, none of the other reports reckoned with the fact of the offender having committed these serious offences and, at any rate, were directed to a civil claim for compensation. These points may be accepted. I would also add that the offender did not give evidence in the sentencing hearing so the practitioners were reliant upon out of court assertions placed beyond scrutiny in this sentencing hearing.
These points have force so in my view, the most probative report for consideration is that of Dr Rodriguez. He did take into account the guilty verdicts against the offender; and although he was reliant upon what the offender told him, I infer that he deployed his specialised knowledge in formulating his opinions doubtless factoring in the possibility of statements being conveyed to him by someone who had been convicted of multiple child abuse offences. Dr Rodriguez' curriculum vitae refers specifically to his expertise with PTSD and his experience in dealing with sex offenders. I note also that there is no indication that the Crown required his attendance to attend to be cross-examined.
The offender grew up in a loving, middle-class family in Annangrove, on a 5-acre property, which is to the northwest of Sydney's CBD. He had an unremarkable childhood and the offender specifically denied any history of child sexual abuse or behavioural problems. He loved the outdoors. His father is still alive, but is quite elderly. He remains close to one of his two brothers,
From an early age, he took an interest in joining the fire brigades. By the age of 14, he was taken to serious fires and motor vehicle accidents. The next year, as has been emphasised, his exposure to one such motor vehicle accident had a profound effect on his mental health. When he was aged 17, he suffered a rupture of his kidney when a pillion passenger in a motor vehicle accident.
He began to drink alcohol from the young age of 13, but only in small amounts. He only began to drink regularly in his mid-20s. His involvement in the RFS opened up the possibility of greater drinking, as a form of debriefing after the traumatic effects associated with his duties with the service. But he apparently informed Professor McFarlane and Dr Nagesh that he had not been drinking since 2016 'to any extent' because of a diagnosis of diverticulitis. I note that the victims of his offences (MC) had indicated that he had some drinking around campfire in the lead up to some of the offending.
He was reputedly an average school student, but did not get into trouble and his social experience of school appeared tolerable.
In terms of his employment history, after some early farming help, he started an apprenticeship in horticulture. He had other jobs, although the history is not extensive. Amongst other jobs, he had worked for the NSW Government as a soil expert; apparently since 1995.
He had three short term relationships, and married in 1992, when he was aged 29. After the birth of their second child, the marital relationship deteriorated and according to the offender, they remained together for the sake of the children. He thought his wife had developed mental health issues after the children were born.
His psychosexual history was unremarkable. He said he was interested in adult females and denied having experienced any sexual attraction or arousal in young males or females. He reported having a low sex drive since his mid-20s and claimed he had been impotent for at least 15 years; being last intimate with his wife around 2012. He reported having erectile dysfunction.
[2]
Mental condition
All of the mental health professionals diagnosed the offender as suffering from Post-Traumatic Stress Disorder (PTSD). They all also point to his using alcohol as a coping mechanism to deal with distress associated with those symptoms. But as to the alcohol use disorder, the preponderance of opinion was that he was in remission.
Professor McFarlane and Dr Nagesh also diagnosed him as having a Major Depressive Disorder. He told Dr Canaris (in October 2022 - again before trial) that he had been living, with some difficulty, with his brother and sometimes visits his elderly father; and there were "days when I feel I don't want to be there anymore". He indicated that the thing that held him together was his sons.
Professor McFarlane's report was the earliest in time, being dated 31 March 2022. This was before the trial. Professor McFarlane opined that the offender had developed acute PTSD following his exposure to a motor vehicle accident in 1978 when he was only 15 and his symptoms recurred when he was involved in a fatal motor vehicle accident in 1997. He has apparently been in receipt of workers compensation benefits for his PTSD since April 2021, attributable to the trauma experienced at the RFS. Dr Rodriguez was informed that the offender had attended over 40 serious motor vehicle accidents involving the death of at least one person, and in excess of 20 serious fires involving the death of another. The offender told Dr Canaris that in 2016, he went to a house on fire and stepped on a dead body numerous times; and he had a flashback about that episode in 2021.
In his written submissions in chief (MFI 2), the offender's Counsel referred only to the offender's PTSD as a mental condition; and not other conditions alluded to by the mental health professionals.
I find, in the circumstances that the only relevant mental condition of material significance to the sentencing discretion is the offender's PTSD. The Crown accepted that he had this condition throughout the period of his offending.
Without wishing to diminish the range and scope of his difficult experiences within the RFS, in terms of his exposure to inherently traumatic events, I would interpolate, at this point, and in response to Professor McFarlane's specific reference to past motor vehicle accidents as a contributor to the offender's PTSD, that a number of the instant offences involved the offender's use of motor vehicles or indeed a motorbike for recreational activities. Some of the offences (counts 1 & 2), at least coincided with leisurely driving with the victim (MC) after floods. Other offences involved somewhat risky nature of his driving of a motor bike at trial (counts 4, 11 & 12) It is plain that the offender enjoys driving for leisure. Clearly, his PTSD symptoms did not incapacitate the offender from driving even though it might have been expected that of all activities, it might be driving that might trigger them.
There is no suggestion in any of these reports from the mental health professionals, and his Counsel disclaimed any suggestion, that his mental condition caused or contributed to the offending, so as to reduce his moral culpability (DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]). As Ms Crown argued, the mere presence of a mental condition at the time of the offending, if it is not causally connected to the offending, does not automatically lead to a more lenient sentence. That depended on the circumstances. In this case, the offender's PTSD should not diminish the force to be given to general deterrence.
There was no suggestion advanced on the offender's behalf that his PTSD reduced his capacity to understand the wrongfulness of his conduct towards the victims or to exercise self-control, reduce his cognitive faculties or emotional restraints nor that he was unaware of the consequences of his actions. In the circumstances, I do not consider that his PTSD reduces the need for general deterrence.
Nevertheless, although there is no basis for reducing the force of general deterrence, there is a basis, in view of his current state, for giving less weight to specific deterrence. This can occur even in the absence of a finding of a causal connection between health conditions and offending (S Odgers Sentence (6th ed), Longueville Media [4.74], p 357, fn 554). Further, although some criticism might be made of the offender for delaying the seeking of treatment until 2021, I am not unduly critical: in this regard delay in seeking treatment is not uncommon for persons who think they can cope through other mechanisms.
[3]
Antecedents and prior good character
The offender had no prior criminal convictions. There was evidence at trial, which I noted in my summing up, regarding his extensive service and attainment of leadership positions within the Rural Fire Service (Wilberforce Brigade) and his activities in mentoring and incidental involvement in charitable fund-raising.
Much of this was emphasised again in this sentencing hearing. At this sentencing hearing he relied upon documents heralding his contributions to firefighting during the 2019-2020 New South Wales bushfires. This included a Citation from the then NSW Premier (accompanied by a letter from the Premier), a Certificate of Service he received from the Commissioner of the NSW Rural Fire Service (also accompanied by a letter). Away from his contribution to dealing with the Bushfires in 2019-20, he also attached a Certificate of Life Membership from the Wilberforce Rural Fire Brigade. Other written testimonials were received from other firefighters. These were Murray Steep, Jon Russell (Captain of the Cottage Point Brigade) and Dave Sargeant (Captain of the Wilberforce Rural Fire Brigade). They commonly opine that he is a well respected member of the local community who had rendered diligent and conscientious service to, but not limited to, the RFS. Both of the Brigade Captains noted the responsibilities reposed in the occupant of that office and commended the offender for the way he discharged his responsibilities.
A slight concern that the Court is a pro forma element to the testimonials: both Brigade Captains used the exact expression 'On a personal level, I know Michael is a loving and kind family man'. I note that neither of those children gave evidence in support of the offender. Nor for that matter, did his wife. Nevertheless, consistent with what I directed the jury in the trial, I accept that, as a matter of fact, he is a man of prior good character and that there is an absence of prior convictions. The offender's Counsel urged upon the Court that his contribution to the community over 44 years is worthy of some recognition in the Court's exercise of its discretion.
However, the Crown submitted that by s 21A(5A) of the CSP Act, good character and the lack of prior convictions are not to be taken into account as a mitigating factor if the Court is satisfied that either factor assisted the offender in the commission of the offending. The offender's Counsel disputed this and this dispute was arguably the most significant one in this sentencing hearing.
The causal connection was emphasised by Beech-Jones CJ at CL (N Adams J agreeing) in Bhatia v The Queen [2023] NSWCCA 12 ("Bhatia") at [13]-[15]. By its written submissions (MFI 1, paragraphs 90-93) the Crown initially pointed to passages of the evidence of the victims' mothers to support the causal connection. The offender's Counsel, through his supplementary written submissions, referred to a passage in the same judgment by Hamill J (at [144]), who appeared to suggest a requirement that the Crown prove that the offender who 'traded' or 'misled' others into believing that he was of good character (or lacked prior convictions). This suggests to me positive conduct by the offender, which, with respect, strikes me as exceeding the approach favoured by Beech-Jones CJ at CL, who merely pointed to the requirement for a connection; and, specifically, (at [15]) proof of an 'assessment' by someone of the offender's character (or absence of prior convictions). To the extent that there is a difference between the approach of Beech-Jones CJ at CL and Hamill J, I would, with respect, prefer the former's view.
At the sentencing hearing and over the offender's objection, I permitted the Crown to rely upon witness statements of the victims' mothers (Exhibits D and E), which I have also take into account in conjunction with the matters they had referred to at trial.
A question arose during argument about the standard for proving engagement of s 21A(5A). Ms Crown referred me to the passage from Beech-Jones CJ at CL's judgment in Bhatia, at [13], about there being a relatively low threshold for proof and his Honour's reference to an evidential burden. But as I suggested to Ms Crown, it occurred to me that by invoking that statutory provision, the Crown was seeking to remove the capacity of the offender to rely upon matters hitherto regarded as being mitigating factors. It occurred to me that, consistently with Olbrich, the Crown should prove the facts which it relied upon for engaging the statutory provision beyond reasonable doubt. Ms Crown did not disagree.
I am satisfied beyond reasonable doubt that the offender's good character, in particular, assisted him in the commission of his offending. This appeared to be implicitly acknowledged by the offender at trial; where he portrayed himself as being responsible and, indeed, a pillar of the community - a local RFS 'hero' - who prudently made known to the mothers of the two victims his involvement in and role with the RFS - itself a badge of good character - and even went so far as to assure BJ's mother that he had undertaken a 'working with children' check (T 413.8 - .18). BJ's mother's knowledge of his having that particular credential helped her to form an assessment of the offender's good character. This was the functional equivalent of a reference to good character to which Hamill J referred to in Bhatia. His good character was of some assistance to the offender (Bhatia per Beech-Jones CJ at CL, at [14]-[15]). Accordingly, I do not treat his prior good character, itself, as a mitigating factor.
I do not consider that the absence of convictions itself engages the statutory provision or adds anything more to the significance of the offender's good character. It would be difficult to conceive that a person could remain an officer of the RFS if he or she was the subject of a conviction, at least of a serious offence, which suggests that the absence of convictions does not add more than his reputed good character. As Ms Crown persuasively argued, a working with children check would, if it was relied upon by the person receiving it, disclose the presence of an absence of convictions, so in this way, the absence of convictions is relevant. Further, as his Counsel did at the trial, I treat the absence of conviction as emblematic of (prior) good character.
In short, by s 21A(5A), the offender is not able to rely upon his good character and absence of prior convictions as mitigating factors when considering the sentencing option and its length.
In the alternative, I also accept the Crown's submission that (on the basis that I am wrong about s 21A(5A) being engaged) even if prior good character could be taken into account (independently of its significance to other factors of the kind I have adverted to), the weight to be ascribed to it would be diminished for offending of this kind especially where, as here there was a substantial degree of planning and repeat offending (R v PGM (2008) 187 A Crim R 152 per Fullerton J (Spigelman CJ and Barr J agreeing) at [44]). The offender's Counsel agreed with this in relation to the instant offending.
[4]
Absence of remorse
The offender mounted a vigorous defence at trial. He denied any or all of the sexual activities against the two victims. It is pertinent to note that he enjoyed some success in that regard in relation to the victim, BJ and complete success on the single charge of another complainant, HH.
Notwithstanding such success, he is to be sentenced on the charges upon which he was found guilty.
He maintains his innocence and, unsurprisingly, shows no contrition or remorse for his offending. He is entitled to his position and is not to be punished for his beliefs, but by doing so, he foregoes the benefits of mitigation that are associated with a guilty plea and/or an expression of contrition.
[5]
Prospects of rehabilitation
Prior to the trial, the Crown had served a tendency notice of the offender's sexual interest in female teenagers and an associated tendency to act upon it when given the opportunity. Ultimately in her address to the jury, Ms Crown did not make anything of such sexual interest.
It appears that the offender had not sought psychological or psychiatric help until 2021. He told Dr Canaris that he did not have any empathy and did or could not have friends.
Dr Rodriguez considered that the offender's prognosis was poor in terms of his psychiatric functioning.
He also has a supportive brother, who lives nearby. It appears that notwithstanding the poor state of his marriage, his wife supported him in his defence to the charges.
When I observed to Ms Crown that no submissions had been advanced on the offender's behalf on this topic, she argued that the Court would be guarded on making any finding and emphasised his maintenance of innocence and lack of insight.
In my view, this is an instance where no finding can be made about his rehabilitation prospects.
[6]
Likelihood of re-offending
Dr Rodriguez opined that the offender did not have the usual characteristics found in persons with a paedophilic disorder or an 'anti-social makeup', but in view of the offender's maintenance of his innocence, the professional considered that he required a longitudinal risk assessment for re-offending.
The offender's Counsel drew the Court's attention to the offender's compliance with his bail conditions (Exhibit 2). Those conditions, which were not unusual for cases of this kind, have been complied with.
Although this evidence was not overwhelming, in my view on balance, it would be unlikely that he would re-offend.
It is difficult to conceive that after he has served his sentence, the offender will be in a position to give vent to any latent residual sexual urges against young victims the subject of this proceeding.
[7]
Hardship
This is a consideration for which the offender bears an onus of proof on the probabilities.
Dr Rodriguez considered that the offender had high treatment needs and he believed that he was unlikely to obtain the treatment he needs. Other than receiving medication (a prescribed antidepressant) he was not receiving any mental health support or treatment in custody. Dr Rodriguez opined that deprivation of the treatment he needed was likely to cause him significant stress. These opinions assumed the correctness of the information that the offender supplied to him.
The Crown, in response, relied upon part of (pp 3-4) a NSW Justice Health document on forensic mental network services (issued in September 2022) (Exhibit B). This relevantly described, in dot point form, the range of mental health services available to people in contact with the correctional centre. I place some weight on this document, but it is limited: it is descriptive of services, but says little, in itself, about the effectiveness of the delivery of the services.
The offender's Counsel made no submissions about this document when presented with the opportunity to do so. Nor did he seek leave to have the opportunity to adduce evidence about the offender's own experience whilst under incarceration that would invalidate inferences that might be drawn about the availability of such services.
The offender did not give direct evidence, that was capable of being scrutinised, about the extent to which he had been, or would likely be, deprived treatment. The assumptions that Dr Rodriguez made were based upon out of court statements from an offender convicted of serious offences characterised, amongst other things by a breach of trust.
All this being said, the Crown did not dispute that he has PTSD. Whatever be the position in terms of his access to medical treatment, I accept that the custodial setting in which he has been placed will mean that his time in custody will be more onerous than it would be. Although the weight to this factor is limited when considering the length of the sentence, I propose to take this factor into account when considering the length of his non-parole period.
[8]
Instinctive synthesis
I have also taken into account the maximum penalties and the standard non-parole periods, as applicable. It is manifestly not the case that a sentencing judge is to pay only lip service to these guideposts. There is no doubt about the inherently heinous nature of the charges committed against teenage children. I note, in particular, the especially high standard non-parole period for the offence of aggravated sexual touching relative to the maximum penalty. Both the maximum penalty and, where it applies, a standard non-parole period, represent legislative guideposts, but I acknowledge the significance of the non-parole period in accordance with the principles set out by the High Court in Muldrock v The Queen (2011) 244 CLR 120 at [26]-[31].
I also have taken into account the sentencing principles in s 3A of the CSP Act. Foremost in my mind is a sentence that attaches cardinal importance to general deterrence, adequacy of punishment, retribution and denunciation and holds the offender accountable and also a sentence that acknowledges the violation and significant harm to the victims. In EG v R [2015] NSWCCA 21 at [42], it was said in that case that 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. Specific deterrence is reduced on account of his current mental health condition and the unlikelihood of his reoffending. The sentence should not be of such crushing length as to induce a sense of helplessness or despair; though this is a matter which in my view is more relevant to assessing the length of the non-parole period
I am satisfied that the s 5 threshold is crossed. The offender's Counsel realistically acknowledged that this was 'inevitable'.
[9]
Totality
I apply the principle of totality.
The Crown submitted that there were 13 offences committed on two victims over the course of between 3 and 4 months. It submitted that substantial accumulation was appropriate because of the separate and discrete nature of the offending against the separate victims and to reflect the gravity of that offending.
There is some scope for concurrency given the circumstances in which the offending constituting counts 1 and 2 (the offending occurring on the same day), counts 3 - (the alternative to) 7 (incl) (on the same camping trip, over the ANZAC Day long weekend) and 10 - 11 (same day) 13 - 14 (same day) occurred, against the same victim in what can be viewed as a narrow class of incidents.
However, the offender has to be punished in a proportionate way to reflect his overall criminality. There were two victims and both were subjected to multiple offences on different occasions over a period (in the aggregate) of 3-4 months and the aggregate sentence must reflect the seriousness of the offending and the need to recognise the harm done to both victims.
[10]
Prior custody
The offender was also in custody for a period from the date of his arrest until he was released on bail. He went into custody again after the jury returned its guilty verdicts. In all he has been in custody for 145 days in respect to these offences.
The sentence will be backdated to take into account this period.
[11]
Special circumstances
The offender is a first time offender who, given his age, and his health condition and the nature of his offending, is likely to find full time imprisonment especially onerous. I find that special circumstances arise.
You are convicted of counts 1, 2, 3, 4, 5, 6, the alternative charge to count 7, 8, 10, 11, 12, 13 & 14 on the indictment.
You are sentenced to an aggregate term of imprisonment of 14 years imprisonment commencing on 29 January 2023 and expiring on 28 January 2037. The non-parole period is 8 years and 8 months expiring on 28 September 2031; after which you will be eligible for parole.
[13]
Endnote
Because of the length of this indicative sentence, there is no applicable non-parole period; s 46 of the CSP Act
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Decision last updated: 26 June 2023
Assessing the objective gravity of the offending against MC
As a preliminary point, I start from the position that it is unnecessary to ascribe a particular point on the scale of offending, with particular reference to where it falls in relation to a mid-range notwithstanding that most of the offences carry a standard non-parole period: DH v R [2022] NSWCCA 200.
Generally applicable (to all counts) matters relevant to objective gravity
Certain factors pertaining to the objective seriousness of the offending (which I distinguish from statutory aggravating factors) were identified by the Crown as including: the age differential between the offender and the victims; the insignificance of the duration of the offences (R v Lau [2022] NSWCCA 131 at [82]. I accept those matters.
Two other matters were raised by the Crown which assumed greater prominence in the sentencing hearing. These were that the offending featured 'grooming and exploitation' by the offender and that the victims were vulnerable. The Crown confirmed at hearing that these matters were relevant to the objective gravity of the offending, rather than being matters that the Crown relied upon as falling within the statutory aggravating factors under the CSP Act.
Addressing each offence individually
As to counts 1 & 2, the offending verged on the brazen, with another occupant - admittedly a younger child - also in the motor vehicle when the offending occurred. The victim was closer to the age of 16. The touching and then the sexual intercourse occurred at a time when the victim was plainly distracted by reason of her driving and vulnerable in that specific sense. Specifically in relation to count 1, the touching moved eventually towards the victim's vagina. There was bare skin touching of her vagina. These matters mark out count 1 as being a serious instance of offending.
I note in relation to count 1 (and also counts 9-13 (incl) involving the victim BJ) generally, consent is not an element of the offence. But more pertinently for sentencing purposes, consent is not a mitigating factor. As has been observed, children are to be protected from sexual conduct, even if they are willing participants. As Basten JA explained in R v Nelson [2016] NSWCCA 130 at [23]
" To treat that [ie lack of opposition to sex by the victim] as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour."
As to count 2, the digital penetration did not last long, but it only stopped after the victim had taken action which prompted the offender to cease his offending. At any rate, as indicated elsewhere, shortness of duration of intercourse is not especially significant for offences of this kind since it may be explained by the offender's desire to avoid detection. The victim said, and I accept, that the penetration hurt her and she felt uncomfortable. Nevertheless, the offending was at the lower end of seriousness for offending of this particular kind.
Count 3 was a separate incident. In isolation, the act of kissing someone who one knows on the lips is not the most serious form of sexual touching. But it did involve a minor, albeit unwanted, element of force through the offending bringing the victim's body closer to him to effectuate that touching. He kissed her at a point when she was 'tipsy' and, to that extent, also vulnerable, by lowering her capacity to physically resist (this being a discrete point of vulnerability to the general finding of vulnerability previously made). The victim's age was not an element of this offence, so her young age and the significant age differential generally is material to assessing the seriousness of the offending. These circumstances take the offending out of the lowest range which the physical act of sexual touching might otherwise have indicated.
Assessing the objective gravity of the offending against BJ
For all of the counts relating to the victim, BJ, the offender noted that her age was at the upper end of the age threshold for the offences.
As to count 10, the offender tried to conceal his offending, as well as preventing the victim from a means of escape, by closing the door behind him. The location was already remote. The touching occurred on the victim's breasts and vagina, although on both occasions, it was on the outside of the victim's clothing. Given the public place that the offending occurred in, it was not surprising that the touching did not last for very long. But it occurred also despite the victim's manifest opposition. The offending was quite serious.
As to count 11, this offending was similar in some respects to that which was described in count 4 against the different victim; although it was less serious in the sense that there was no skin to skin contact. The victim did however try to pull away but was unable to. Shocking though this experience would have been to the offender, because of its outrageous exhibitionism, it was a lesser scale of offending of this kind.
As to count 12, the context of the victim having fallen off the bike is significant. She would have been in a period of some shock, and possibly some hurt or disorientation; after falling off the offender's motor bike. I find that the offender deliberately fell on the victim. He exposed his penis, although the victim's hand touched it on the outside of his clothing. This offending was serious.
Counts 13 and 14 may viewed as part of a single episode. The start of the offending for count 13 resembled that of count 10, but it became more serious when he became violent in trying to overcome the victim's resistance. The touching that occurred on the victim's breasts involved skin-to-skin contact. The offending for count 13 was serious. I will refer later to an aggravating circumstance.
Having violated her in the sense of sexually touching her the offender then went further. She was in a degraded position from that earlier offending (on count 13), being down on her knees. I refer to his use of force in the next section of these remarks. It happened over 10 to 15 seconds; which was plainly long enough for him to know that she did not want to engage in that (or any other sexual) activity. I agree with the Crown that there was minimal difference between the attempt at fellatio and actual fellatio. But in the context, the attempt did not substantially lessen the objective seriousness (Walsh v R [2015] NSWCCA 83 at [25]). This was a particularly serious instance of offending.
Abuse of position of trust
The Crown submitted that the offending involved an abuse of trust. The Crown says that it was not just the trust of the victims which was abused, but also the trust of the victims' respective mothers.
For counts 3-6 & 8 the circumstance that the victim was under the offender's authority was an element of the offence. The conceptual similarity and difference between the factor of a breach of trust and circumstance of offending being under the offender's authority was recently reviewed in PC v R [2022] NSWCCA 107 at [73]-[76]. The offender's counsel conceded that for counts 3-6 and 8, consistently with the jury's verdicts, the offender abused a position of trust, although he argued, consistently with MRW v R [2011] NSWCCA 260 at [77], the sentencing judge needs to be cautious in giving undue weight to this factor where abuse of authority was an element of the offence. The Crown agreed with this submission and I also accept it.
In oral argument at the hearing, the Crown also argued that breach of trust applied to count 2, notwithstanding that for that offence, the aggravating circumstance of the offending occurring 'under the offender's authority' was not an element of the offence. Ms Crown cited the authority of Davies v R [2019] NSWCCA 45. The offender did not dispute that submission and I accept it.
The offender submitted that in relation to the remaining counts (i.e. 1, the alternative to count 7 and 10 -14 (incl), the facts did not engage this aggravating factor, citing observations by Fullerton J in Mol v R [2017] NSWCCA 76 at [117].
The Crown submitted that this particular aggravating factor applied to Counts 1, the alternative to 7, and 10-14 (incl) as well.
I prefer the Crown's submissions. The relations between the offender and the victims did not amount to any 'business of social communion'. The offender was identified as someone who, by his standing within the community, was entrusted with a responsibility to care for the victims who he knew had lacked, to adopt the Crown's submission, stable father figures. Indeed the sort of activities that he engaged in with the victims were the sort of leisurely or recreational activities that a father devoted to his daughters might engage in. His obligation of care was heightened in those circumstances.
It will be evident from the last paragraph that there are echoes of my treatment of the feature of 'grooming and exploitation' earlier as a common feature relating to the objective gravity of each of the offences. I think great care needs to be exercised when weighing this particular aggravating factor. In my view the matters that the Crown relied upon to argue that there was 'grooming and exploitation' as a feature of the objective seriousness of each offence, and the matters relied upon by the Crown to invoke this particular statutory aggravating factor, are substantially indistinguishable. I agree further with the offender's submission that other factors that fell within the rubric of 'grooming had exploitation' could have fallen with other statutory aggravating factors which the Crown had eschewed, including the circumstance that the victim was vulnerable (s 21A(2)(l)), but which has also been taken into account when assessing the objective gravity of the offending. I note that in the definition of grooming proffered by the authors of the survey (Exhibit C, p 7), the word 'trust' and the expression 'vulnerable subject' are subjoined.
Harm to victims
All of the three categories of offences are 'child sexual offences'. The offender is to be sentenced in accordance with s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act). Further, I am bound to have regard to the trauma of sexual abuse on children understood as at the time of sentencing, including recent psychological research and the common experience of courts.
Nevertheless, in R v Youkhana [2004] NSWCCA 412 Hidden J said at [26]:
" … before a judge could find 'substantial emotional harm' within the meaning of s21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have ….."
Both victims supplied victim impact statements. The victim, MC (whose statement was read out by a support person) referred repeatedly to her loss of innocence, because of the offender and described, in various ways, the impacts upon her. Some of those make for very disturbing reading. A prominent theme is the shame that she has had to endure but, more positively, her sense of resolution in overcoming her fears generated by the processes of the criminal justice system.
The Crown alluded to evidence from MC's mother at trial about her exhibiting a noticeable change of behaviour after the offending committed; by playing unusually depressing music and coming out of the bathroom in tears and cutting her legs (T 402.41.44)
The victim, BJ, prepared points rather than making a narrative statement. She emphasised the impact of the offender in making her feel unsafe, especially around men and his impact upon her physically and at school. She also referred to her anxiety about the future.
The Crown also alluded to evidence at trial about some physical effects, such as BJ stopping eating (and requiring an iron transfusion) and being discovered by her mother crying in a foetal position (T 205, 415-416).
I observed both of the victims give evidence at trial. Both exhibited genuine distress when they gave accounts of multiple sexual acts inflicted them as teenagers, at a vulnerable and formative stage of their lives.
The offender's Counsel acknowledged that offences of this king have a long-lasting deleterious impact on victims.
The Crown did not however, argue that the factor in s 21A(2)(g) of the CSP Act was engaged.
I do not find that it is engaged, although as one of the important sentencing considerations (s 3A(g)) all of this is to be taken into account.
Count 4 was also a separate incident. The physical act of forcing the victim to touch the offender's penis strikes me as being less serious than the offender touching a part of the victim's body. But similar to count 3, the offending involved the offender taking advantage of the victim who, in her words, was 'really drunk'. It also occurred at a point where the offender was driving a vehicle and where the victim was dependent upon his doing so safely; and the offender knew as much. Doubtless the circumstance that the offender was driving a motor bike, from his perspective, added a layer of thrill to the sexual gratification he was already receiving. This was a serious instance of offending of this kind.
Counts 5 - (the alternative to) 7 (incl) may be grouped together. They formed part of the same episode and, in a sense, it is artificial to divide them into separate components of offending. Consistently with what I have already said about grooming, I find that there was planning associated with the offending in each case, given the deliberate placement of the sleeping bags prior to the sexual activities. (This, again is additional planning beyond what I have said about grooming and exploitation). Contrary to the implication in the offender's submission, the offending was not simply spontaneous or opportunistic. The initial sexual touching arose through the offender, a man of solid build imposing himself against a teenage girl and touching the most intimate part of her anatomy (skin on skin touching); before progressing to the act of digital penetration (causing the victim to feel sore) and thereafter penile-vaginal intercourse. There was no evidence as to how long these sexual activities lasted (not that this is especially significant), nor, in the case of count 7, any ejaculation, which would have elevated the seriousness of the offending. The offending for counts 5 and 6 were serious instances of offending for the offences in kind; the offending for count 7 being slightly less serious for an offence of that particular kind.
In the circumstances, having already taken grooming and exploitation into account on the objective gravity, I give no additional weight to this statutory aggravating factor.