R v SM

OBJECTIVE SERIOUSNESS

1. An assessment of the objective gravity of sexual offending against a child or young person requires a consideration of a number of different criteria. It is appropriate to note that the victim in the present matter was not strictly speaking a "child" in the sense of being under the age of 16 and unable legally to consent to any form of sexual activity. She might more accurately be described as a "young person". However, the likely profound and deleterious effects upon the victims of child sexual abuse which has been regularly referred to both in first instance proceedings and in the superior courts, clearly have a degree of application, notwithstanding the victim having attained the age of 16 or 17 at the time of the offending. The observations of such likely psychological damage in authorities such as R v Gavel [2014] NSWCCA 6 still have relevant application.
2. In the present matter, despite having attained 16 years of age, the circumstance that the victim was in a vulnerable position, namely the familial relationship with her own father, and that she was a child who had been assessed with a degree of autism and ADHD, are relevant considerations in assessing the objective seriousness of the offending. However, the degree of severity relating to such an assessment when the victim was a child has not been the subject of any detailed evidence in these proceedings.
3. Features rendering the offending conduct as a serious example of an aggravated sexual assault were set out by the Court of Criminal Appeal in R v GWM [2012] NSWCCA 240 at [64].
4. Whilst the enumerated features set out in that case related to the specific facts before the court, they provide examples of the type of features to which the court should have regard in assessing objective seriousness.
5. The circumstance of full penile penetration, albeit anally, is a relevant factor for consideration - see R v PGM [2008] NSWCCA 172 at [27]-[28]. I make that observation notwithstanding the absence of any identified hierarchy with respect to forms of intercourse and noting that the distinction which had been brought at first instance in PGM was between an act of partial vaginal penetration and cunnilingus.
6. The act of anal intercourse described in the relevant substantive offences in this case included on two occasions (Sequences 10 and 15) the continued penetration of the victim's anal passage until the offender ejaculated, albeit in Sequence 15 this was onto a rag. The submission made on behalf of the offender that the duration of each offence was neither prolonged nor sustained is of little significance in the consideration of objective gravity. The act of intercourse continued in relation to Sequences 10 and 15 until a natural physical conclusion of the assault. The absence of a precise time of duration is of little significance in my view.
7. The Crown submits that the forced anal intercourse was a particularly serious example of section 61J(1) offences. The Crown's submission was that it was degrading behaviour to be forced onto one's hands and knees and that the forced anal intercourse would necessarily have occasioned some discomfort to the victim. Notwithstanding the element of the offence being that his daughter was under his authority, there was also a significant breach and abuse of his position of trust.
8. The Chief Justice of New South Wales, Bathurst CJ (James and Johnson JJ agreeing) in MRW v R [2011] NSWCCA 260, noted that an abuse of a position of trust or an abuse of authority as particularised in the aggravating factors set out in the Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k), relate to distinct concepts. In the circumstances of that case it was held to be open to the sentencing judge to have taken the breach of trust by a father towards his child into account, notwithstanding that an element of the offence charged was that the child was under the father's authority. However, I note that the Chief Justice counselled (at [78]): "However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court."
9. I should make it clear that I am conscious of the qualitative difference between the notion of a breach of trust and the notion of being under authority, see R v Slater [2003] NSWCCA 178 at [53]-[54] per Shaw J (Grove J agreeing), and I will be cautious in not giving undue weight to the clear abuse of the position of trust with respect to those counts in which the abuse of authority is an element of the offence : see also the observations of R A Hulme J in Franklin v R [2016] NSWCCA 319 at [63]-[75].
10. In the submission of the Crown, each of the four offences involving full penile penetration of the victim's anus would fall above the mid-range of objective seriousness. Sequences 10 and 15 involve continued penetration until ejaculation. Sequence 14, the iPad incident, initially involved penetration of the victim's anus while she was lying on her back. The offender then told her to get onto all fours and again penetrated her anus. I agree with the Crown's submission that these actions were sustained and persistent.
11. Sequence 16, the incident in the bathroom, had an estimated temporal duration of about 10 minutes.
12. With respect to Sequence 14, while there was no direct physical threat or application of physical force, the offender took advantage of the victim's desire to take the iPad on the proposed school trip when he told her, "it's gonna cost you." The Crown described this circumstance as humiliating and a vivid demonstration of the position of authority which was held over the victim. The victim was clearly vulnerable in a consideration of her overall circumstance. This included her age, the familial relationship, the diagnoses of autism and ADHD, the preceding physical violence reflected in the common assault with the belt shortly prior to her 16th birthday, the level of grooming that preceded the physical offending (see Agreed Facts at [6]), and the comments made to the victim ("what's mum going to do if I go to jail? Where is the money going to come from?") which were clearly intended to dissuade the victim from complaining.
13. The Crown relies upon all of these various factors to support the submission that each of the s 61J(1) offences fall above the mid-range.
14. The circumstance of actual ejaculation places Sequences 10 and 15 above the mid-range in my view. The additional incidents of anal intercourse which are not said to have culminated in ejaculation, might be viewed, as a consequence, to be slightly less serious than those involving ejaculation. However, they would still fall at or around the upper end of a perceived mid-range. There is an inevitable degree of subjective assessment in determining the actual extent of such described areas in a range and, in some circumstances, the difference in expression might be viewed as a matter of semantics, and I make specific reference to some observations of Hidden J.
15. Sequence 13 was an act of attempted sexual intercourse which remained unconsummated as a consequence of the offender's inability to effect penetration. On behalf of the offender, it was submitted that the act of attempt was less serious in nature than those involving actual penetration.
16. In Walsh v R [2015] NSWCCA 83, McCallum J referred to reasons which had been expressed by Justice Adams in which his Honour had said at [14] that: "As a general rule the objective seriousness of an attempted offence will, for obvious reasons, be less than a completed offence." McCallum J, after referring to that statement by Justice Adams, said: "I would prefer not to generalise that assessment in a pre-emptive way. Depending on the circumstances of the case, the degree of difference between a failed attempt and a completed sexual assault might be of little significance in the overall assessment of objective seriousness of an offence…"
17. Walsh had involved actual acts of penetration, namely digital penetration, followed by attempted penile penetration of the anus and vagina. The offender, similar to the present matter, had been flaccid and unable to effect penetration.
18. Sequence 13 occurred at the remote property where the offender was working and the attempt was not completed because the offender was insufficiently erect. The assault was not discontinued as a consequence of a voluntary desisting. The Crown submits that this offence is only slightly less serious than the completed offences. I am of the view that it is less serious than the completed offences but it still falls well within the mid-range of objective seriousness.
19. Sequence 22 appears to have been the first physical act of sexual interaction. This was the occasion shortly after the victim turned 16 when the offender told her that he needed help with his "blue balls." She was required to lie naked on her back while the offender rubbed his penis on the outside of her vagina. The offence was skin-to-skin and continued to the point of ejaculation. I agree with the Crown's submission that with respect to offences of this type, the offence falls within the mid-range.
20. Sequence 18, namely inciting the victim to carry out a sexual act towards him, where he requested her to take explicit photos of herself, did not involve physical contact. Nor was the act one which occurred in the actual presence of the offender.
21. The court has been cautioned against transgressing what is described as the De Simoni principle given that a number of Commonwealth Criminal Code offences relating to the transmission and possession of photographs of the type which were procured, carry substantially greater penalties than the offence charged. I have confined my consideration to the actual act of incitement and in a consideration of all of the circumstances, I am of the view that this particular offence falls below the mid-range.

SUBJECTIVE FACTORS

1. The offender did not give evidence in the sentence proceedings. However, evidence was called from his mother who outlined relevant details of his upbringing and of his exposure to domestic violence as a child. His mother described in some detail incidents of domestic violence which occurred during the offender's childhood which had been predominantly directed towards her. The domestic violence included both physical and verbal abuse which the offender had witnessed from about the age of 4. There was also verbal abuse directed at the child and there were also incidents of physical violence towards him when he was still a child. She described the incidents of domestic violence as inevitably being linked to the consumption of alcohol. The offender's father had been employed initially as a tyre fitter and later as a labourer. During the offender's upbringing, the family had moved around to different towns. She described in some detail acts of violence in the presence of the child as including her being punched and her hair pulled. She said that her husband would punch her in the middle of the back so that people would not see the marks. She said that the offender was about 7 or 8 at the time of those type of incidents.
2. She said that as the offender got older he would step in. Her husband knew that SM would hit him back. At the age of 14, police took out an Apprehended Violence Order for his protection because of physical abuse by his father against the offender. The offender's mother described having moved to Cessnock on occasion to stay with her sister because of the violence in the family home. At the age of 16 the offender moved out of the family home.
3. The offender's mother gave detail of what she described as incest at the hands of her own father towards all 14 of his own children. She described it being a topic of conversation which was deliberately brought up in front of the grandchildren, that is the grandchildren of the perpetrator. She said that it was talked about upfront on the basis that it could happen to anybody, that it was out there, and that it should be talked about.
4. Her husband, SM's father, when drinking used to tell the offender's mother that the acts of incest were as much her fault as her father's. She described the present offender as having been made aware of that family history when he was about 9 or 10. She graphically illustrated the circumstance of the family incest in her sworn evidence regarding a question in the family as to whether the offender's brother was actually a child of the incest with her father. She had been 16 when she fell pregnant and the question of that particular child's fatherhood had remained. She said that the offender was aware of that situation as far as she knew.
5. In the course of cross-examination, she indicated that the mental and verbal abuse towards her son was there all the time but that she could only remember him being physically assaulted on the one occasion which led to the police taking out an Apprehended Violence Order. In discussing the topic of incest with her own children, she agreed that the context of the conversation including such behaviour was that it was wrong. She said that they had talked about how children should be aware of the dangers of adults. She agreed that it had been made clear in such conversations that such behaviour was wrong.
6. In addition to the oral testimony called from the offender's mother, a psychological report from Gaius Gorman dated 14 October 2021 was tendered. In the interview with the psychologist, the offender was able to recall and describe details of each of the ten offences which had been preferred against him. He told the psychologist that he was suffering from some depression at the time due to the issues of erectile dysfunction with his wife. However, the psychologist also noted in contrast that they were said to be having sex 3-4 times per week. He said that he had not taken illicit drugs nor had he consumed alcohol at the time of committing the offences. He told the psychologist that although he was aware that his actions were against the law, he did not think about the consequences.
7. The psychologist recorded that he was ashamed of himself and expressed regret for his behaviour. He acknowledged, to the psychologist, that his actions were harmful to his daughter and to his family more generally. The psychologist was of the view that the offender's behaviour was characterised by cognitive distortions that allowed him to minimise his culpability and attribute some responsibility for his actions to the victim. He told the psychologist, "I know it's 100% wrong but in my head it was consent…nothing ever happened without her consent." It is appropriate to observe in passing, whilst outlining the subjective case for the offender, that such assertions are indicative of a lack of genuine remorse and to some degree are inconsistent with his pleas of guilty to charges under s 61J(1) which carry with them the element of a lack of consent as a constituent part of the crime.
8. The psychologist's report records that the offender has been placed in protection at the various gaols where he has been detained due to the nature of his offences. Notwithstanding the ongoing circumstances derived from the COVID-19 pandemic, the offender was described in that report as having been allowed to have visitors and having had two contact visits with his wife as well as regular communications via telephone. The offender described in general terms to the psychologist the domestic violence which his mother has subsequently given detailed evidence about. In the course of his consultation with the psychologist, the offender described the incestuous conduct of his grandfather towards the offender's mother and her siblings. He indicated, however, that he knew that such sexual relationships were not appropriate.
9. He described the detail of his sexual activities with his wife. I do not see the need to repeat the detail of that in these Remarks. It suffices to say that he described the detail of multiple sexual interactions with his wife weekly including vaginal and anal sex, the watching of pornography, and the use of sex toys and other items.
10. He indicated that he had talked with his wife about the offences which he had committed upon their daughter. The offender said that his wife was willing to try and work things out with him which provided him hope for the future. He said he has no other close friends but does not know why. He said he can talk to his wife about most things.
11. Detailed psychometric testing which occupied some two and a half hours of the total of four hours spent with the psychologist placed him in the average range (37th percentile) of intellectual functioning. He had a history of learning difficulties and limited educational history which in part had come from the frequency with which he had changed schools. He had always had difficulties with reading. He was found to be easily frustrated and quick to temper in the course of the testing when he found something difficult or challenging. He questioned the purpose of testing on certain occasions. Apart from brief identified periods of anger and frustration, his mood was described as generally flat throughout the assessment.
12. The Static 2002R assessment of sexual recidivism risk produced a total score of "1" which placed him in the "below average" risk category for being charged or convicted of another sexual offence. The psychologist's report noted that in addition to static risk factors however, a comprehensive assessment of risk should also consider dynamic or changeable risk factors. Attitudes and thinking that support sexual offending such as the present offender believing what the psychologist described as the incorrect belief that his victim somehow consented to his sexual offending, was an example of a dynamic factor that appeared to have played a significant role in his offending.
13. Notwithstanding that specific observation, based on the static risk factors he was assessed as having a risk estimated at 3.2% over a 5 year period of committing further sexual offences. The psychologist's report gave no estimate of any likely increase in the percentage risk when dynamic factors such as the example he gave were taken into account.

REMORSE

1. The offender did not give evidence in these proceedings. A letter of apology was tendered, which I will read onto the record, ignoring the spelling or syntactical errors: "Your Honour, I would like to say sorry for what I have done and to everyone I have hurt. I am so sorry. I am so ashamed of myself for the things I let happen and the bad decisions I have made in my life. I am so sorry for letting down all the people who trusted and respected me. I know I will never stop trying to earn back the trust and respect of my family, if I get the chance to prove it will never happen again."
2. There were, as I have already indicated, some expressions of shame and remorse also included in the psychologist's report. The Court, of course, is frequently reminded, from Qutami and cases following, that a degree of reserve must be borne in mind in accepting mitigatory accounts or expressions of remorse relied upon, whether in a letter or having been given to third parties, and such reserve is a matter with which the Court is well familiar.
3. In the present matter, the expressions of shame and regret, both in the correspondence from the offender himself and which are recorded in the psychological report, were, in my view, qualified by the cognitive distortions which the psychologist referred to in his report and to which I have made earlier reference. The account provided by the offender to the psychologist was said to have been characterised by such distortions in his cognition as to allow him to minimise his culpability and, in effect, to attribute blame, or some blame, for the offending conduct upon the victim.
4. In my view, this demonstrates not only a lack of insight but also speaks to a reduction in an assessment of the degree of remorse that he purports to express, both in his letter to the Court and to the psychologist. Absent any evidence from him which might warrant a different conclusion, I have grave reservations about the sincerity and genuine remorse other than may be viewed as implicit in his plea of guilty.

VICTIM IMPACT STATEMENT

1. A Victim Impact Statement was read to the court by a support person on behalf of the victim. The Victim Impact Statement in this matter comprised responses to written prompts and suggestions which were questions posed to her. With reference to the impact on her hopes and dreams, she replied, "My idea of a future has changed, I'm not sure how, but I know there has been a shift." She did, however, say, "I am not letting these crimes prevent me from achieving my hopes and dreams." She described having been afraid to be alone with males at first "because anybody is capable of anything even when it's the people you trust." She described still feeling uncomfortable around men although she thought she was growing out of it. She said it had impacted upon her education and housing. She described feeling really uncomfortable when she had to be tested for sexually transmitted disease and also for pregnancy.
2. The details are not set out in the Victim Impact Statement but it is clear that she has had to leave the family unit, including her mother, and to move interstate to Victoria. She had commenced Year 12 in NSW but was required to repeat Year 11 in the southern state because of where she was in relation to other Year 12 students. She described having difficulty engaging with school due to the significant changes in her environment and her continuing to suffer from disrupted sleep and stress. She told the compiler of the statement that she might have to repeat Year 11 yet again. She described a lack of financial support and an absence of means of income and the circumstance that she had to leave many of her personal belongings behind. She described her belief that some of her things had subsequently been used without her permission. She said that these were items she will be unable to replace.
3. She similarly described the considerable difficulty in having had to leave her friends behind and the problems in making friends in a different place. She also expressed her concern at having had to leave her dog behind when she was required to move. She had asked her former teacher to take care of the dog.
4. She described her feelings as including feeling betrayed, let down by people who were supposed to protect her, as well as being lonely and worried. She said, "My family were supposed to be there for me and they just weren't." She expressed her distress at the fact that one of her aunts looked at her as though she were a complete liar and said that she was not welcome at her aunt's home because her aunt said she did not believe her. She described her older sister as rarely talking to her. She said that when she does, she blames the victim for the breakdown of the family and tells her she was selfish. She expressed the belief that her mother thinks that she was lying and that she had not been there for the victim.
5. She described two people who did believe her namely her nan and also her younger sister. She expressed her pride in protecting her younger sister from the offending of her father.
6. I note the detailed analysis with respect to Victim Impact Statements by Simpson J in R v Tuala [2015] NSWCCA 8. Whilst I note that the specific weight to be given to a Victim Impact Statement is to be tempered by the fact that it is not on oath and not subject to cross-examination, I should express having no reservation about acceptance of the descriptions put forward by the victim in this matter. It is an objective fact that she has been dislocated both geographically and, manifestly, both psychologically and emotionally from her family and the environment in which she was growing up.
7. The common experience of the courts regarding the "profound and deleterious effects" flowing from the sexual abuse of children referred to in R v Gavel to which I referred earlier, have application in the present matter notwithstanding that the victim had attained 16 years of age. Her Victim Impact Statement confirms the common experience of the courts.

DETERMINATION

1. The description by the victim of the betrayal of trust that she has felt as a consequence of the actions of her father are a clear illustration of the nuanced distinction between a person in authority and an abuse of trust referred to by Chief Justice Bathurst in MRW v R [2011] NSWCCA 260. I am constrained to observe that the description by this young victim of the circumstance that members of her immediate family including her mother, her older sister, and an aunt, are said to disbelieve her allegations requires the observation that her account of what occurred to her is corroborated in terms by the pleas of guilty which have been entered by the offender and his agreement to the written facts which have been tendered in the proceedings. Those who entertain any reservation about the truthfulness of this young girl should focus on those admissions.
2. I have taken into account the circumstances of the COVID-19 pandemic and the current implications for conditions of incarceration. I have been invited to make a finding of special circumstances because the offender's prospects of rehabilitation would be assisted by an extended period of supervision and that it is the offender's first time in custody and because of the circumstances of COVID-19. I am of the view that the length of the sentence which I will impose will provide an adequate length of supervision.
3. I have not noted, but I should, that the offender had no prior criminal convictions on his record. The circumstance that he was of prior good character is, in the circumstances of the commission of this offending, of but little significance.
4. I propose to proceed by way of an aggregate sentence pursuant to the provisions of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). I am required to set out the indicative sentences which would have been appropriate for the disposition of the individual substantive counts. They are as follows, taking into account the 25% discount which is applicable following the early indication of pleas of guilty.
5. With respect to Sequence 8, common assault, the indicative sentence is six months.
6. With respect to Sequence 22, or the sexual touching, rubbing his penis on the outside of the child's vagina, 2 years 3 months.
7. With respect to Sequence 10, the aggravated sexual assault under authority, 10 years with a non‑parole period of 7 years.
8. With respect to Sequence 13, attempted aggravated sexual assault under authority, 6 years.
9. With respect to Sequence 14, aggravated sexual assault under authority, taking into account the charge on the Form 1, being sequence 4, 8 years with 6 years' non‑parole.
10. With respect to Sequence 16, aggravated sexual assault, 7 years 6 months with 5 years non parole.
11. With respect to Sequence 15, aggravated sexual assault under authority, taking into account the 25% discount, which I have done in all cases - I have taken into account as well the sequence 17 included on the Form 1 - 11 years with 8 years.
12. With respect to Sequence 18, aggravated inciting of a person to do a sexual act, will be a period of 12 months.
13. There will be an aggregate term of imprisonment of 16 years imprisonment. The non‑parole period will be a period of 12 years. Both the sentence and non‑parole period will commence from 23 February 2021. Accordingly, the non‑parole period will expire on 22 February 2033, and the additional term will expire on 22 February 2037. I should make it abundantly clear that the 25% discount has been taken into account in determining that aggregate term.

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: 21 April 2022