R v SH

The Offences

1. I shall briefly summarise the circumstances and nature of the offending, as found by the jury. Other than in respect of counts 23, 24 and 25, there was agreement between the parties as to the findings which must be attributed to the jury.
2. Offences committed against the victim, YD: 1. Count 5 - the offender put his hand under the underwear of YD, and touched her vagina (Indecent Assault - s 76). This offence occurred between 1 January 1976 and 31 December 1977 when the victim was 7-9 years old. 2. Count 6 - the offender licked YD's vagina (Indecent Assault - s 76). This offence occurred between 1 January 1976 and 31 December 1977 when the victim was 7-9 years old. 3. Count 7 - the offender touched YD's vagina and clitoris with his fingers under her underpants (Indecent Assault - s 76). This offence occurred between 1 January 1976 and 31 December 1977 when the victim was 7-9 years old. 4. Count 8 - the offender licked YD's vagina (Indecent Assault - s 76). This offence occurred between 1 January 1976 and 31 December 1977 when the victim was 7-9 years old. 5. Count 9 - the offender licked YD's vagina and clitoris (Indecent Assault - s 76). This offence occurred between 1 January 1976 and 31 December 1977 when the victim was 7-9 years old. 6. Count 11 - the offender washed YD's vagina with soap (Indecent Assault - s 76). This offence occurred between 1 January 1976 and 31 December 1977 when the victim was 7-9 years old. 7. Count 12 - the offender licked YD's vagina and clitoris (Indecent Assault - s 76). This offence occurred between 1 January 1976 and 31 December 1977 when the victim was 7-9 years old. . 8. Count 14 - the offender put his hand under YD's underpants and touched her vagina and clitoris (Indecent Assault - s 76). This offence occurred between 16 January 1976 and 1 July 1977 when the victim was 7-8 years old. 9. Count 15 - the offender rubbed his penis against YD's vagina and clitoris (Indecent Assault - s 76). This offence occurred between 1 January 1977 and 1 July 1978 when the victim was 8-9 years old. 10. Counts 16 and 19 - the offender licked YD's vagina and clitoris, and requested YD lick the offender's penis, which act occurred (Indecent Assault - s 76). These offences occurred between 5 November 1976 and 1 December 1978 when the victim was 8-10 years old. 11. Count 21 - the offender rubbed his penis on YD's vagina (Indecent Assault - s 76). This offence occurred between 1 January 1980 and 1 July 1980 when the victim was 11 years old. 12. Count 22 - the offender rubbed his penis up and down on YD's vagina (Indecent Assault - s 76). This offence occurred between 1 January 1980 and 1 July 1980 when the victim was 11 years old. 13. Count 29 - the offender digitally penetrated YD's vagina (Indecent Assault - s 76). This offence occurred between 1 January 1981 and 13 July 1981 when the victim was 12 years old.
3. Offences committed against the victim, VG: 1. Count 23 - the offender, having displayed a pornographic video depicting female to female cunnilingus, told VG to try the practice on his daughter, VG's cousin (Incite Act of Indecency - s 76A). This offence occurred between 23 June 1977 and 23 June 1981 when the victim was 6-10 years old.
4. I will return to this count and counts 24 and 25 as they involve the only dispute as between the parties as to what findings must be imputed to the jury. 1. Count 24 - the offender again incited VG to an act of cunnilingus on his daughter (Incite Act of Indecency - s 76A). This offence occurred between 23 June 1977 and 23 June 1981 when the victim was 6-10 years old. 2. Count 25 - the offender persisted with enquiries of VG as to whether she had committed an act of cunnilingus on his daughter (Incite Act of Indecency - s 76A). This offence occurred between 23 June 1977 and 23 June 1981 when the victim was 6-10 years old. 3. Count 26 - the offender had carnal knowledge with VG (Carnal Knowledge - s 67). This offence occurred between 1 July 1980 and 1 July 1981 when the victim was 9-10 years old. 4. Count 27 - the offender stimulated VG by rubbing her vagina and/or clitoris (Indecent Assault - s 76). This offence occurred between 1 July 1980 and 1 July 1981 when the victim was 9-10 years old. 5. Count 28 - the offender placed his penis between VG's thighs (Indecent Assault - s 76). This offence occurred between 1 July 1980 and 1 July 1981 when the victim was 9-10 years old. 6. Count 30 - the offender had penile/vaginal intercourse without VG's consent (VG was 15 years of age at this time) (Sexual Intercourse without Consent - s 61D(1)). This offence occurred between 1 June 1986 and 31 December 1986 when the victim was 14-15 years old. 7. Count 33 - the offender had his hand down VG's underpants and guided her hand to stimulate his penis (Indecent Assault - s 61E(1)). This offence occurred between 17 April 1989 and 1 July 1989 when the victim was 17-18 years old.

The Contested Issue in Regards to Counts 23, 24 and 25

1. As I have indicated, the parties were not in agreement as to what findings should be imputed to the jury in respect of counts 23, 24 and 25. The basis of the contest between the parties was as to whether the act incited, that is, the performance of cunnilingus by the victim VG on the offender's daughter, in fact occurred. This fact cannot be automatically imputed to the jury as it was not an essential element of the offences.
2. The Crown says that the evidence of the consistent reverting by the offender to VG with enquiries as to whether VG had committed the act, the subsequent reports by VG that she had committed the act, and the evidence of further encouragement by the offender to VG to commit the act, were sufficient to establish beyond reasonable doubt that the acts of cunnilingus in fact occurred.
3. The offender relied on the unequivocal evidence of the offender's daughter, OH, given at trial, that the acts of cunnilingus never occurred. He contended that OH's evidence should be accepted. He also pointed to the fact that on the evidence of the victim VG, OH was 3 years old at the time of the alleged act of cunnilingus, and notwithstanding that very tender age, VG gave evidence that shortly before one of the incidents of cunnilingus, OH was washing dishes. The offender contended that it was most improbable that a child of three would have the capacity and manual dexterity to wash dishes. This, he contended, should cast doubt on VG's memory that the incited event in fact occurred.
4. I think there is merit in the offender's contentions in this regard. I am not prepared to find beyond reasonable doubt that the acts of cunnilingus the subject of counts 23, 24 and 25 occurred.
5. This finding affects the objective seriousness of counts 23, 24 and 25.

Victim Impact Statements

1. Both the victims provided the Court with victim impact statements which described in detail the devastating effect which the offender's offending conduct has had on them. These effects, to a significant degree, subsist to this day. I will not elaborate on the deleterious effects of the offending on the victims, as they are understandably of a personal nature. It is sufficient for present purposes to say that these effects may justifiably be described as profound.

The Objective Seriousness of the Offending

1. At the end of the day, the parties were in substantial agreement as to the objective seriousness of the offending. It was accepted by the parties that the offending was serious, and was in the upper range of objective seriousness, though not of the most serious kind.
2. I agree with this assessment.
3. The seriousness of offences such as those which bring the offender before the Court has been highlighted in many authorities. To give but one example, in R v Fisher (1989) 40 A Crim R 442 at 445, the Court said: This court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations … This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults …
4. The parties were also agreed that there were certain aggravating factors present in the offender's conduct, being: 1. that a large number of the offences were committed in the victims' home (s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act")); 2. that the offences resulted in substantial emotional harm (s 21A(2)(g) of the Sentencing Act); 3. that the offender abused a position of trust or authority (s 21A(2)(k) of the Sentencing Act); 4. that the victims were vulnerable because they were very young (s 21A(2)(l) of the Sentencing Act); and 5. the length of time over which the offending occurred.
5. I accept that these aggravating factors were present in the offending, and have taken them into account in my assessment of the objective seriousness of the offending. I do so as I consider that these factors are "objective" in the sense that they do not emerge from the circumstances of the offender. As such, in my view, they are best brought into account in the assessment of objective seriousness (See R v McNaughton (2006) 66 NSWLR 566, at [30]-[34], per Spigelman CJ; Elhassan v R [2018] NSWCCA 118, at [13]-[14], per McCallum J (as Her Honour then was)).
6. As a consequence of the approach which I have taken to the objectively aggravating matters to which I referred, I do not therefore take them into account as separate aggravating factors, as to do so would involve double counting.

The Offending Requires Denunciation

1. The offender's conduct requires the Court's unequivocal and resolute denunciation.
2. Over a long period of time, the offender abused his position of trust as the victims' paternal uncle. He did so at a time when his family and his brother's family were sharing a house together, which fact enabled him to systematically sexually abuse his nieces for his own perverted sexual gratification. He was able to do so because the living arrangements were such that his nieces were available to him to sexually exploit on an opportunistic basis. The latter offending, which occurred at the same house, but after the two families had separated, occurred in circumstances where the offender cynically exploited the occasions of the victims' presence in the house without their parents, for the purpose of visiting his children, the victims' cousins.
3. There can be no doubt that the offender was aware of the depravity of his actions, nor could he possibly have been in any doubt as to the likelihood of serious deleterious physical, social and psychological effects which his actions may have on his nieces. He was selfishly indifferent to these matters.
4. The moving victim impact statements of the offender's victims stand as a salutary statement to the fact that the risks of those traumatic effects on his nieces, have come home.
5. The Court in R v Fisher saw fit to describe conduct such as that perpetrated by the offender as "evil". That adjective is patently applicable to the offender's conduct.

The Offender

1. The offender is 71 years of age. At the time of his offending, the offender was aged between 27 and 41 years old. He has no criminal antecedents, which is a mitigating factor (s 21A(3)(e) Sentencing Act). He does not have any terminal health issues, although he does have certain health issues which might be thought to be consistent with that which one might expect of a man of his age.
2. The medical evidence tendered at the sentencing hearing disclosed that the offender suffers from the following: 1. coronary artery disease; 2. significant anaemia; 3. diabetes; 4. hypertension; 5. osteoarthritis; 6. reflux; and 7. renal difficulties.
3. These health issues are seemingly being treated adequately.
4. The offender is also a cancer survivor, although the evidence suggests that this condition has been successfully addressed. Significantly, there was no evidence that the medical conditions from which the offender suffers would be incapable of adequate treatment within the custodial system.
5. The offender pointed to the fact that other than for the offences which bring him before the Court, he was otherwise of good character. It was said that this factor should be considered a mitigating factor.
6. In committing the offences, it was said on his behalf that it was his position of uncle living in the same premises as the victims, which assisted in his offending. In so submitting, it was inferentially suggested that his perceived good character played no part in the offending. I do not accept that this is the case. More precisely, I do not consider that the avuncular relationship negatives the fact that he was trusted with the care of his nieces, because inter alia, he was also considered to be of good character.
7. Put another way, if he had not been a person perceived to be of good character, then notwithstanding the avuncular relationship, in my view it is doubtful that he would have been left alone with his nieces. His character, therefore, in my view, has assisted in the commission of these offences, and is not available to him as a mitigating circumstance (s 21A(5A) Sentencing Act).
8. In any event, the authorities make clear that where the offender is a family member, sentences must be severe, and little leniency can be given, even though the family member has been otherwise of good character: R v Evans (unrep, 24/3/88, NSWCCA); R v Hudson (unrep, 30/7/98, NSWCCA).

Protective Custody

1. The offender submits that given the nature of his offending, it is to be expected that he will serve his sentence in protective custody. He submits that every year in protective custody is equivalent to a longer loss of liberty than that which would occur under ordinary conditions of imprisonment.
2. This submission of the offender was unsupported by any evidence of the factual matters which underlay it. At least since R v Durocher-Yvon (2003) 58 NSWLR 581, the Court of Criminal Appeal has warned against the adoption of what is in effect a presumption of harsh prison conditions for inmates requiring some degree of protection. See for example Clinton v R [2009] NSWCCA 276, at [24]; R v Way (2004) 60 NSWLR 168, at [176]-[177]; RWB v R [2010] NSWCCA 147, at [192]-[195].
3. The Crown, however, did not dispute the offender's contentions with respect to the onerous nature of protective custody; and nor did it take the point that the contention was unsupported by evidence. Indeed, the Crown accepted the contention in terms insofar as it was put in relation to s 44 of the Sentencing Act.
4. In these circumstances, that being the approach of the parties, I do not believe that it is appropriate for me to disregard the impact of protective custody on the basis of its lack of an evidentiary basis, and I take it into account as a mitigating factor accordingly.

Risks of Reoffending

1. The offender contended that he is at a low risk of reoffending, given his frail condition, and his likely age on release. The offender also pointed correctly to the fact that there is an absence of any offending since 1989.
2. I accept that the offender's risks of reoffending are low (s 21A(3)(g) Sentencing Act).

Remorse/Contrition

1. The offender maintains his innocence, and as such, there can be no room for considerations of contrition, remorse, or any suggestion that he has gained an insight into his offending.

Special Circumstances

1. The offender pointed to certain matters, which it was contended, would satisfy the Court that special circumstances exist for the purposes of s 44 of the Sentencing Act. These factors were: 1. the offender's advanced age; 2. the offender's poor health rendering imprisonment more burdensome on the offender than the average prisoner; 3. the fact that this would be the offender's first time in custody; and 4. the fact that the offender is expected to serve his time in protective custody.
2. The Crown did not demur from the fact that those special circumstances were present. I accept the offender's submissions and propose to sentence accordingly.

Sentencing Practices

1. I am cognisant of the fact that I must sentence the offender for these child sexual offences in accordance with the sentencing patterns and practices at the time of sentencing, and not at the time of the offences (s 25AA(1) of the Sentencing Act).
2. This requires me to have regard to the trauma of sexual abuse on children as understood at the time of sentencing, which may include recent psychological research or the common experience of courts (s 25AA(3) of the Sentencing Act).

General and Specific Deterrence

1. As the authorities make clear, in sentencing with respect to offences of this nature, consideration must be given to matters of both personal and general deterrence. I have taken these considerations into account.

Gaol the Only Option

1. It was the unstated premise in the sentencing proceedings before me, that gaol was the only conceivably appropriate penalty. This could hardly be gainsaid, and I unhesitatingly accept that this is the case, and so find for the purposes of s 5 of the Sentencing Act.

Aggregate Sentence

1. As I have indicated, I propose to deal with this matter by way of an aggregate sentence. I have taken this course as, in my view, this approach best accommodates the requirements of proportionality, accumulation, concurrence and totality.
2. Accordingly, I formally indicate that such a sentence is being imposed (s 53A(2)(a) Sentencing Act).
3. I am also required to indicate the sentences I would have imposed for each offence, had separate sentences been imposed rather than an aggregate sentence (s 53A(2)(b) Sentencing Act).
4. In setting forth the following indicative sentences and the aggregate sentence, I have taken into account the matters set forth earlier in these Reasons in relation to the objective seriousness of the offences. Aggravating and mitigating factors to which I have referred have also been taken into account.
5. In arriving at these sentences and the aggregate sentence, I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357, at [51].
6. The following indicative sentences are head sentences (Dimian v R [2016] NSWCCA 223, at [49]) and are as follows: Counts in respect to YD: Count 5 3 years Count 6 4 years Count 7 3 years Count 8 4 years Count 9 4 years Count 11 2 years Count 12 4 years Count 14 3 years Count 15 3 years Count 16 4 years Count 19 4 years Count 21 3 years Count 22 3 years Count 29 3 ½ years Counts in respect to VG: Count 23 1 year Count 24 1 year Count 25 1 year Count 26 6 years Count 27 3 years Count 28 3 years Count 30 6 years Count 33 3 years
7. SH: 1. You are sentenced to a term of imprisonment of 12 years with a non-parole period of 7 years. 2. Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct that such term of imprisonment shall commence on 30 July 2019 and that the non-parole period shall expire on 29 July 2026 with the balance of the sentence to expire on 29 July 2031.

Amendments 19 November 2020 - Amended publication restriction section of cover sheet to identify statutory and court ordered publication restrictions. 19 November 2020 - Amended "complainants" to "victims" on cover sheet 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: 19 November 2020