R v Tumai

Catchwords: CRIME — sentencing — State and Commonwealth offences — multiple child sexual assault offences — multiple child abuse material offences — Bugmy finding — general deterrence — deviant sexual interests — paedophilic/hebephilic interests — high risk of violent sexual recidivism — protection of the community — registrable person order

Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)

Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 572
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Lane v R [2025] NSWCCA 113
Lane v R [2025] NSWCCA 113
Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
R v Hutchinson [2018] NSWCCA 152
R v Kinnaird [2025] NSWDC 501
RG v R [2025] NSWCCA 36

Category: Sentence

Parties: Rex (Crown)
Matthew TUMAI (offender)

Representation: Counsel:
Mr G Whitaker (Crown)
Mr P Butterfield (offender)
Solicitors:
ODPP (Crown)
Newton’s Law (offender)

File Number(s): 2023/00079229

Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) applies so as to prohibit the publication of any material which may identify or is likely to lead to the identification of any child victim in the proceedings.

JUDGMENT

Introduction

1. The offender, Matthew Tumai, appears for sentence in relation to 17 child sexual assault and child abuse material offences against his ex-partner’s two daughters, MB and HW, then aged 9 and 12.

2. The offender is to be sentenced for the following 13 State offences:

3. Six offences of sexual intercourse with a child under 10 years, pursuant to s 66A(1) of the Crimes Act 1900 (NSW) (“the Act”). This offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years’ imprisonment. (Sequences 2, 11, 12, 15, 13 and 14)

4. Four offences of aggravated use of child under 14 years to make child abuse material, pursuant to s 91G(3) of the Act. This offence carries a maximum penalty of 20 years’ imprisonment. There is no standard non-parole period. (Sequences 8, 22, 26 and 27)

5. Two offences of aggravated sexual intercourse with a child 10 years or older and under 14 years, pursuant to s 66C(2) of the Act. This offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 9 years’ imprisonment. (Sequences 24, 25)

6. One offence of intentionally sexually touching a child 10 years or older and under 16 years, pursuant to s 66DB(a) of the Act. This offence carries a maximum penalty of 10 years’ imprisonment. There is no standard non-parole period. (Sequence 21)

7. The offender is also to be sentenced for the following Commonwealth offences:

8. Four offences of use carriage service to make available child abuse material, pursuant to s 474.22(1) of the Criminal Code Act 1995 (Cth) (“the Criminal Code”). This offence carries a maximum penalty of 15 years imprisonment and/or a fine of 900 penalty units. (Sequences 1, 4, 5 and 7)

9. A sentencing court is required to pay careful attention to both the maximum penalty and any standard non‑parole period. Both provide sentencing measures or guideposts to be balanced with all other relevant sentencing considerations.

10. Those considerations occur within the intuitive process of sentencing. This involves synthesising the objective seriousness of the crime and the subjective circumstances of the offender to arrive at a sentence that best meets the different purposes of sentencing.

Forms 1 and Form s.16BA

6. The offender has also asked for a further three State offences to be taken into account on two separate Forms 1 and a Commonwealth charge on a Form s.16BA. The presence of an offence on a Form can mean that there is an increase in the penalty that would otherwise be appropriate for the principal charge, by giving greater weight to the need for personal deterrence and to the community’s entitlement to exact retribution for this other offence, for which no punishment would otherwise be imposed.

7. When the offender is sentenced for Sequence 8, the following two charges will be taken into account on a Form 1:

8. One offence of grooming a child under 16 years of age for unlawful sexual activity, pursuant to s 66EB(3) of the Act. (Sequence 19)

9. One offence of possess child abuse material pursuant to s 91H(2) of the Act. (Sequence 10)

10. When the offender is sentenced for Sequence 26, the following charge will be taken into account on a Form 1:

11. One offence of grooming a child under 16 years of age for unlawful sexual activity, pursuant to s 66EB(3) of the Act. (Sequence 20)

12. When the offender is sentenced for Sequence 1, the following charge will be taken into account on a Form s.16BA:

13. One offence of use carriage service to send indecent material to a person under 16 years of age, pursuant to s 474.27A(1) of the Criminal Code. This offence carries a maximum penalty of 10 years imprisonment or 600 penalty units. (Sequence 17)

14. Given the seriousness of these charges, they will all result in an increase in the indicative sentence for the primary charge.

Plea of guilty

11. The offender entered pleas of guilty at the earliest opportunity. I will reduce each indicated sentence by 25% to reflect the utilitarian value. I also will take care that the process of accumulation does not erode those benefits.

Time spent in custody and commencement date

12. The offender was arrested on 9 March 2023 and has been in custody solely referrable to these offences since that date. The sentence will be backdated to commence on 9 March 2023.

The circumstances of the offending

13. There are agreed facts that set out the circumstances of the offending. Annexed to the Agreed Facts is a table setting out descriptions of the 926 photographs and videos of the victims found on the offender’s phone (Annexure A) (Sequence 10).

Background

14. The offender was 47 years of age at the time of the offences. The victims are sisters, HW and MB, and they were aged 9 and 12 respectively at the time of the offending.

15. The offender met the victims’ mother, JV, around September 2019 when the family was living in Queensland. They began a relationship in May 2022, and the offender began living with JV and her children at their home in Queensland.

16. On 10 December 2022, the offender moved to the Central Coast with JV and her children, taking out a lease on a house (“the family home”).

State offences - 10 December 2022 to 12 February 2023

Seq 2 – Sexual intercourse with child under the age of 10 years (DV) – HW

17. Between 10 December 2022 and 12 February 2023, the offender had penile-anal intercourse with HW in the offender’s room. At the time JV was asleep and MB was in her room.

Seq 11 – Sexual intercourse with child under the age of 10 years (DV) – HW

18. During the same incident, the offender also had penile vaginal intercourse with HW.

Seq 12 – Sexual intercourse with child under the age of 10 years (DV) – HW

19. Also, within the same incident, the offender engaged in fellatio with HW. The intercourse ended with the offender ejaculating “all over” HW. Following this, the offender told HW to go to MB’s room.

Seq 15 – Sexual intercourse with child under the age of 10 years (DV) – HW

20. The offender would regularly come into the bathroom when HW was having a shower to look at her, and he would touch her on the vagina.

21. On one occasion at the family home between 10 December 2022 and 12 February 2023, whilst HW was in the shower, the offender digitally penetrated her vagina.

Seq 8 – Aggravated use child under 14 years to make child abuse material – HW

22. During this same time period the offender regularly used HW to make child abuse material, including material that involved the offender committing other sexual offences upon her.

23. Between 10 December 2022 and 12 February 2023, whilst at the family home in her bedroom, the offender took photos of HW’s vagina. During this time, HW was completely naked, and the offender told her to act “that [she] liked it” and to spread her legs apart for the photo.

24. Sometime following this incident, at the family home, the offender asked HW to make a “porn” video with him to make money. HW refused. As a result, the offender threatened to break HW’s laptop because she didn’t want to make the “porn” video.

Form 1 (attached to Seq 8): Seq 19 – Groom child under 14 years for unlawful sexual activity – HW

25. During the time that HW had known the offender, she had seen multiple images and videos that would constitute child abuse material, made by the offender using her as a subject.

26. Between 10 December 2022 and 12 February 2023, at the family home, the offender showed HW a video that involved two men having sex with a young girl (HW estimated the child was 4 to 5 years old), in which one of the men was anally penetrating the child and the other was penetrating the child’s mouth with his penis.

Seq 25 – Aggravated sexual intercourse with child 10 years or older and under 14 years, under authority – MB

27. Sometime between 10 December 2022 and 24 December 2022, the offender moved MB’s mattress in the loungeroom area of the home.

28. On an occasion between 10 December 2022 and 12 February 2023, whilst at the premises in the loungeroom area, the offender cut up a towel and wrapped it around MB’s eyes, mouth and hands. While on the mattress, the offender positioned MB’s hands behind her head whilst she was laying on her back. The offender penetrated MB’s vagina with his penis and had penile-vaginal intercourse with her. During the intercourse, MB was trying to tell the offender to stop but couldn’t because of the towel in her mouth. The intercourse ended when the offender ejaculated on the bedsheet. During the intercourse, the rest of the family were within the house sleeping.

Seq 26 – Aggravated use child under 14 years to make child abuse material, child under authority – MB

29. On one occasion in the loungeroom of the premises, between 10 December 2022 and 12 February 2023, the offender made MB wear a black G-string and took pictures of her. The offender got her to pose in various positions, including on her hands and knees.

Form 1 (Attached to Seq 26): Seq 20 – Groom child under 14 years for unlawful sexual activity – MB

30. On an occasion at the family home, the offender made MB watch a video of “a whole heap of teenage boys fucking a teenage girl, like one girl.”

Seq 21 – Sexual touching – child between 10 and 16 (DV) – MB

31. On one occasion, when JV was going to the shops with the other children, the offender told MB to stay back, and before MB went in the pool, the offender shaved MB’s pubic hair. As a result, the offender touched MB’s genital region.

Seq 22 – Aggravated use child under 14 years to make child abuse material, child under 10 years of age – HW

32. On another occasion, the offender used his phone to make child abuse material of HW in the form of a video. The video is described as “video of [the offender] using right hand to touch clothed buttocks of [HW] (sexual activity). [The offender] sitting on lounge at [the family home] with [HW] laying forward into offender’s lap. [HW] wearing blue denim shorts/skirt and floral/tropical top.**”

33. This video is referred to in Annexure A as ‘Number 1’ and was later identified and located by the police on the offender’s mobile phone. This video is classified as Category 2 – Other illegal content over 8 years of age.

Seq 27 – Aggravated use child under 14 years to make child abuse material, child under authority - MB

34. On another occasion, the offender used his phone to make a video of MB, described as “Video of [MB] dancing fully clothed in living room of [the family home]. [*The *offender] sitting (leg tattoos seen). [The offender] pushes [MB] in genital region with his right foot (sexual activity). [MB] states, ‘I really wish I could do the splits’”.

35. This video is referred to in Annexure A as ‘Number 54 and 55’ and was later identified and located by the police on the offender’s mobile phone. This video is classified as Category 2 – Other illegal content over 8 years of age.

Seq 13 – Sexual intercourse with child under the age of 10 years (DV) – HW

36. On 24 December 2022, the offender had penile-anal intercourse with HW.

Seq 14 – Sexual intercourse with child under the age of 10 years (DV) – HW

37. On the same day, the offender also had penile-vaginal intercourse with HW. Following this, the offender told HW to go to MB’s room. The offender then went to bed.

Seq 24 – Aggravated sexual intercourse with child 10 years or older and under 14 years, under authority – MB

38. On the same day, the offender had penile-vaginal intercourse with MB. It hurt MB and she told him to stop. At a point during the intercourse, the offender put lubricant on his penis and continued to have intercourse with MB until he ejaculated on her.

12 February 2023

39. Due to difficulties in her relationship with the offender, JV travelled back to Queensland on several occasions and would then return to the home in NSW. Around 12 February 2023, she travelled back to Queensland with her children and did not return to NSW from that date.

40. The offender remained living at the home in NSW.

Commonwealth offences – 4 March 2023 to 8 March 2023

41. The following offences arise from the offender’s participation in Kik Messenger chat groups. The offender operated a Kik account under the username ‘Tumai**13’.

Seq 1 – Use carriage service to transmit child abuse material

42. Between 7:54pm on 4 March 2023 and 5:51am on 9 March 2023, the offender engaged in a Kik Messenger chat with ‘Naughty BiGuy PMs Open’, which was an account operated by a co-offender, Neil Kinnaird.

43. During the conversation, the offender referred to the sexual relationship he was having with the victims, who he called “my girls”. Kinnaird appeared to be referring to a sexual relationship he was having, or aiming to have, with a female child. They both disclosed becoming sexually aroused when talking about engaging in various sex acts with children.

44. The offender sent Kinnaird various images and videos that constituted Child Abuse Material between 5 March 2023 and 8 March 2023. This included 3 videos that were classed as Category 1 - Real Child Pre-Pubescent, over 3 years of age. These videos ranged in length from 14 seconds to 1 minute and 2 seconds, and variously depicted real female children, ranging in age from 4 to 7 years old, being vaginally penetrated by adult males.

45. The offender also sent 6 images that were classed as Category 2 – Other illegal content over 8 years of age, which variously depicted HW and MB unclothed or wearing underwear, including engaging in penile/vaginal intercourse with the offender. He also sent 1 image of a real female child, aged 4-6, holding an erect adult male penis in her mouth.

Seq 4 – Use carriage service to transmit child abuse material

46. Between 12:19am and 12:43am on 5 March 2023, the offender exchanged messages with ‘Jens Rf’ on Kik Messenger. Jens Rf was from a group that the offender was in called ‘Daughter dad*’* and appeared from the chat to be a 31-year-old male who was fantasising about having a sexual relationship with a 4-year-old girl and asked the offender about his situation.

47. The offender referred to HW and MB as his 9- and 12-year-old stepdaughters and described how he came to be having sexual intercourse with them from an earlier age. He told Jens Rf the following, referring to HW and MB, “The little one now loves to make me cum and the older one we do something nearly every night. Fuck. Suck. Pegging. Everything.”

48. The offender sent Jens Rf two images, one classed as Category 2 and one Category 3 (Investigative Interest). These depicted HW and MB in swimwear, and in crop tops with their buttocks exposed.

Seq 5 – Use carriage service to transmit child abuse material

49. Between 7:18pm on 5 March 2023 and 7:09pm on 6 March 2023, the offender exchanged messages with ‘CJAYYYY’ on Kik Messenger. They came into contact through another group called ‘Real Dad Dau’.

50. The offender sent CJAYYYY ten Category 2 images, which variously depicted MB and HW, clothed and unclothed, including MB being vaginally penetrated by the offender. One image, in which the persons are unable to be identified, depicts a penis ejaculating onto a female child.

Form 1: Seq 17 – Use carriage service to transmit indecent communication to person under 16 years of age

51. Between 1:14am and 1:31am on 6 March 2023, the offender communicated with another party through Kik Messenger that he met through a group called ‘Daugh@inlawz*(legal)’.*

52. The other party identified as a female. When the offender asked her what she was into, she responded, “Fuck daddy” and described having a sexual relationship with her mother’s boyfriend from the age of 12 years.

53. The other party disclosed to the offender that “I’m 15 now”. The offender responded “Thort [sic] you were 18. But 15 is ok.”

54. When describing her relationship with her mother’s adult partner, the other party stated, “He used to show me porn”. The offender responded, “I’m the same with my stepdaughters” and “we fuck a lot”, referring to HW and MB.

55. The offender went on to state the victim, his stepdaughter, loves him but that he knows “she will fall for a boy soon and forget me…But hopefully we still fuck and suck each other.”

Seq 7 – Use carriage service to transmit child abuse material

56. Between 7:22pm and 8:10pm on 6 March 2023, the offender communicated with ‘Mike Smith’ via Kik Messenger, having met the person through the group ‘Daughter dad’.

57. The two exchanged messages about their sexual exploits as ‘dads’. As part of that conversation, and among other things, the offender told ‘Mike Smith’ that “My youngest is a dirty bitch. Likes it in her ass”, referring to HW.

58. The offender sent Mike Smith seven Category 2 images which variously depicted HW and MB, clothed and unclothed. This included an image of MB lying face down on a bed with semen on her exposed buttocks, and another image of MB lying on her back with the offender’s thumb pushing into her vagina on the outside of her underwear. It also included an image of a male penis ejaculating onto a female child’s vagina, with the identities of the persons unknown.

Investigation and Search Warrant on 9 March 2023

59. The police executed Search Warrants on the offender’s address on 9 March 2023. The offender was home at the time and answered the door. He was holding a mobile phone in his hand that he attempted to place down the front of his shorts (Samsung Galaxy A52 Black mobile phone – “the offender’s phone”). This phone was later seized.

Police discussion with the Offender

60. During the course of the execution of the search warrant, the offender engaged in discussion with the police. He said he got on the Kik messenger app and “was talking to some people and downloaded some content”. He said that content was “young stuff” and that the people on the app “were asking for it, so [he] downloaded some stuff and then [he] sent them some stuff”.

61. The offender advised that his partner and her children had been residing at his unit but that they had left him. He denied that he had any sexual interest in children or that he had any kind of sexual relationship with the children of his partner.

62. The offender was arrested, and the police seized two Samsung Galaxy S10+ phones, a Lenovo laptop and the offender’s Samsung Galaxy A52 black mobile phone that was located on his person.

63. One of the S10+ phones and the Lenovo laptop were unable to analysed. The other S10+ phone was repaired and later analysed.

Form 1: Seq 10 – Possess child abuse material (9 March 2023)

64. On the offender’s Samsung Galaxy A52 Black mobile phone, the police identified 926 photographs and videos of the victims constituting Child Abuse Material, found within a ‘hidden’ folder. A description of each of those images and videos, along with their classification, was provided in Annexure A.

65. Of the 926 photographs and videos, 19 items were classified as Category 1 – Real Child Pre-Pubescent, over 3 years of age, and 907 items were classified as Category 2 – Other illegal content over 8 years of age.

66. The content of the images ranges from sexually suggestive images of the victims to photographs and videos of the offender having sexual intercourse with them. The only children shown are the victims, HW and MB.

67. The date that each individual image and video was created cannot be determined definitively, though police analysis revealed the offender had an image on his phone which was deemed child abuse material that reflected one of the victims on 10 March 2021.

68. A number of the images and videos had been recorded at the offender’s premises in NSW.

Further investigation

69. On 5 April 2023, the offender agreed to participate in an ERISP but refused to answer any questions in relation to the allegations.

Victim Impact Statement

70. MB wrote a Victim Impact Statement that was tendered at the sentence hearing.

71. A Victim Impact Statement allows victims of sexual assault to express their feelings about what occurred and how the offences have affected them. It is recognised that these types of offences have profound and long-lasting effects upon the lives of the victims, and they continue to experience trauma long after the assaults.

72. MB bravely and clearly expressed the impact these offences have had across many facets of her life, including her mental health, schooling and relationships.

73. She spoke of her struggles with nightmares and flashbacks and her problems sleeping. She said she doesn’t like being alone with men and feels uncomfortable around male teachers at her school. She spoke of how she gets triggered when her father hugs her as it reminds her of the way the offender put his hands on her, or when she hears her brother’s name, as he shares a name with the offender. She said that she feels like she “lost all [her] innocence at a very young age”, and that “she didn’t get to be a kid and have a childhood”.

74. I recognise MB’s strength and courage in voicing the impact these crimes have had on her, and I have taken this Victim Impact Statement into account in assessing the harm done to her.

75. However, I have been careful not to double-count where emotional harm is inherent in the nature of the offences. I have also been careful not to take this statement into account in aggravating the culpability of the offender.

Approach to the sentencing

76. When sentencing the offender the Commonwealth offences, I must have regard to Part 1B of the *Crimes Act 1914 (*Cth) and in particular the matters provided for in section 16A of that Act.

77. A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances.

78. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court. This list of factors is not exhaustive and common law principles also apply to the sentencing of federal offenders.

79. When sentencing the offender for the State offences I will have regard to the purposes of sentencing and the other relevant considerations under the Crimes (Sentencing Procedure) Act 1999 (NSW).

80. The Court may only impose a sentence of imprisonment if, having considered all the other available sentences, it is satisfied that no other sentence is appropriate in all of the circumstances. The offender accepted that a sentence of full-time imprisonment was the only appropriate sentence.

General principles – Child sexual assault offences

81. The community rightly considers the sexual defilement of young children as particularly abhorrent. Young children have very little ability to protect themselves from those adults who would sexually assault them.

82. All children are entitled to grow up free from physical violation by sexual predators and the psychological confusion, upset and harm that child sexual assault offences have on their lives.

83. General deterrence is of particular importance where the offender is in a position of trust in relation to the victims, as in this case. In such cases the Courts recognise the fact that children in a family setting are entirely helpless against the sexual molestation by a parent and that they have a right to be protected from sexual abuse in what should be the protective and caring embrace of the family.

84. It is now well understood that offences of this kind are objectively serious and cause significant and permanent harm to the victims. For these reasons, in order to attempt to prevent these crimes, it is expected that when sentencing for these kinds of offences, Courts will send strong messages of both general deterrence and denunciation by imposing sentences of a salutary nature.

General principles – Child abuse material

85. There are well-settled principles that relate to sentencing offences involved in the online sexual exploitation of children. Child abuse material is an international problem which has attained prominence in the internet age and continues to plague and damage the community. The courts have repeatedly stressed the need when sentencing for such matters to give primacy to general and specific deterrence and denunciation.

86. General deterrence generally requires harsh penalties be imposed. Such penalties are designed to signal what will happen if an offender is caught and hopefully deter people from offending. Although sadly, such penalties do not appear to have dented the production and dissemination of such deviant and depraved conduct.

87. A reason for the heavy penalties is that those inclined to exploit children by involving them in the production of child pornography or child abuse material are encouraged by the fact that there is a market for it. Those who make up the market cannot escape responsibility for the exploitation of these real child victims.

88. It is also important to keep in mind that the possession of child abuse material is not a victimless crime and where the material remains in the community, the offence creates significant ongoing harm.

The objective seriousness of the offence

89. Every sentence must be appropriate or proportionate to the gravity of the crime considered in lights of its objective circumstances. It is important that I provide an assessment of the objective seriousness of the offence based upon its features. It is not essential that this assessment is expressed using fine distinctions based upon an artificial segmentation of a spectrum, but it must be clearly understood.

90. When assessing the objectives seriousness of each child sexual assault offence, the context of the surrounding circumstances in which the sexual offence occurred, the nature of the sexual act committed, and the duration of the offences are all relevant considerations. Other relevant factors include the specific age of the child within the date range, the difference in age between the offender and victim, the duration of the conduct and any force used or coercion.

91. The approach to be taken to the assessment of the objective seriousness of child abuse material offences and the factors that are relevant to that task is well-known. See Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 at [94], as summarised in R v Hutchinson [2018] NSWCCA 152 at [44]-[45].

General Crown and Defence submissions

92. Both parties made general submissions about the objective seriousness of the offending.

93. Mr Butterfield, counsel for the offender, made a general submission that many of the offences were particularised with very short and succinct descriptions of conduct and without any matters that elevated the objective seriousness. He submitted that the facts were mostly silent as to whether ejaculation occurred, the duration of the offences, and whether there was any other degrading conduct.

94. The Crown submitted that there were several factors relevant to the objective seriousness that were common for a number of separate offences. These included:

95. The ages of HW and MB (9 and 12 years respectively) relative to the age range of the offences.

96. The significant age disparity with the offender, who was 47 years old.

97. The offences were committed in the victims’ home, where they were entitled to freedom and safety from sexual interference.

98. For those offences involving sexual intercourse, there was no evidence as to the duration of the sexual intercourse.

99. The victims were under the authority of the offender, who abused a position of trust to commit the offences.

100. The offences were part of a pattern of sexual offending against the victims and were not isolated events.

101. Both parties also made submissions as to where each of the offences fall within the notional range for offences of their type. I have had regard to these submissions in determining the objective gravity of the relevant offences, and I make the following findings.

Offences against HW

Sequences 2, 11 and 12

96. In respect of sequences 2, 11 and 12 (which occurred during the same incident), I also note that the offences involved penile/anal, penile/vaginal and oral intercourse with HW (where the offender put his penis in HW’s mouth and ejaculated “all over” her); the sexual intercourse was ‘non-oppositional’; and HW was vulnerable by reason of being alone with the offender while her mother was asleep. I find each of these to be serious offences falling within the mid-range of objective seriousness with the seriousness of Sequence 12 being increased due to the offence involving ejaculation/degrading conduct.

Sequence 15

97. In respect of sequence 15, when the offender digitally penetrated HW’s vagina in the shower, I also take into account that the sexual intercourse was ‘non-oppositional’ and HW was vulnerable by reason of being alone in the bathroom while showering. Consistent with the shared position of the parties, I find this to be a serious offence but falling below the mid-range of objective seriousness for this type of offending.

Sequence 8

98. In respect of sequence 8, which involved the offender taking photos of HW’s vagina when she was completely naked, I also note that the offender told HW to spread her legs apart and act like she “liked it”; the offence was ‘non-oppositional’, and HW was vulnerable by reason of being alone in her bedroom. I find this to be a serious offence falling within the mid-range of the objective seriousness for this type of offending.

Sequence 22

99. In relation to sequence 22, I also take into account that this involved the offender video recording himself touching HW’s buttocks on the outside of her clothes, and that the offence was ‘non-oppositional’.

100. Given the more limited nature of this offence (being the area touched and it being on the outside of the clothing), and consistent with the shared position of the parties, I find this to be a less serious offence falling towards the low end of the range of seriousness for this offence type.

Sequence 13 and 14

101. In respect of sequence 13 and 14, which occurred during the same incident, I also note that the offences involved penile/anal and penile/vaginal intercourse with HW; the sexual intercourse was ‘non-oppositional’; and HW was vulnerable by reason of being alone with the offender. Given the known factors, I find both sequence 13 and 14 to be serious offences falling within the mid-range of the objective seriousness for this type of offending.

Offences against MB

Sequence 25

102. In relation to sequence 25, which involved penile-vaginal intercourse with MB where the offender cut up a towel and wrapped it around her eyes, mouth and hands, I also take into account that MB was not consenting and could not tell the offender to stop due to the towel around her head; the offender ejaculated; and MB was vulnerable by reason of being alone with the offender while her other family members were asleep.

103. I find sequence 25 to be a serious offence falling within the mid-range of the objective seriousness for this type of offending.

Sequence 26

104. In respect of sequence 26, which involved MB wearing a G-string and being photographed in various poses at the offender’s direction, I find that, given the more limited nature of this offence (with the victim being clothed), it is a less serious offence falling *below the mid-*range of seriousness for this offence type.

Sequence 21

105. Consistent with the position of the parties, I find sequence 21 to fall within the mid-range of objective seriousness, noting that it involved the offender touching MB’s genital region by shaving her pubic hair.

Sequence 27

106. In respect of sequence 27, I also take into account that it involved the offender taking a video of himself pushing MB in her genital region with his foot while MB was dancing fully clothed. Consistent with the shared position of the parties, I find that sequence 27 f**alls towards the low end of the range of the objective seriousness for this type of offending.

Sequence 24

107. In relation to sequence 24, I also take into account that the penile/vaginal intercourse was non-consensual; MB was in pain and told the offender to stop, he put lubricant on his penis and continued until he ejaculated on her. I note that I have taken care not to infringe the De Simoni principle on this issue as an offence under s 61J of the Act carries the same maximum penalty but a higher standard non-parole period of 10 years. I also note that MB was vulnerable by reason of being alone with the offender.

108. Given the known factors, I find sequence 24 to be a serious offence falling just above the mid-range of the objective seriousness for this type of offending.

Commonwealth offences

109. In relation to the Commonwealth offences, the Crown submitted generally that for each offence, the offender engaged with a like-minded individual concerning a sexual interest in children.

Sequence 1

110. In respect of sequence 1, the Kik Messenger chat with user ‘Naughty BiGuy PMs Open’, I note that the offender sent a number of videos and images over the course of four days, including sexually explicit videos of real pre-pubescent children between 4 and 7 years old, and also videos of the offender committing sexual acts with both HW and MB.

111. Given the circumstances and these features, I find sequence 1 to be a serious offence falling above the mid-range of the objective seriousness for this type of offending.

Sequence 4

112. For sequence 4, the Kik Messenger chat with user ‘Jens Rf’, I note that it involved the offender describing sexual activity between himself and HW and MB, and sending the person images of HW and MB with their buttocks exposed.

113. Consistent with the shared position of the parties, I find sequence 4 to fall below the mid-range of objective seriousness.

Sequence 5

114. In respect of sequence 5, the Kik Messenger chat with user ‘CJAYYYY’, I take into account that this offence involved the offender sending a number of images and videos over two days, including undressed and sexually explicit videos and images of HW and MB, with images of MB’s unclothed bottom with semen on her buttocks and back, the offender’s fingers touching MB’s vulva area and thumb on her buttock and a video of the offender having penile vaginal intercourse with MB.

115. Consistent with the shared position of the parties, I find that sequence 5 falls within the mid-range of objective seriousness.

Sequence 7

116. Finally, in respect of sequence 7, the Kik Messenger chat with user ‘Mike Smith’, I note that the offender sent a number of videos and images to a person on a single day, including undressed and sexually explicit images of HW and MB, including the offender touching MB’s vagina by pushing his thumb into her vagina on the outside of her underwear.

117. Consistent with the shared position of the parties, I find that sequence 7 falls within the mid-range of objective seriousness.

Other matters

Criminal record

118. The offender has a record of prior convictions for driving offences, property damage and personal violence. He was convicted and fined for contravening an AVO in 2016. He received a suspended sentence of 8 months in Queensland for an offence of assault occasioning actual bodily harm. The offender has no prior offences of a sexual nature against adults or children. However, he was convicted for offensive conduct in 1997 and received a fine.

119. Given the offender’s limited record, he will receive a degree of leniency that would be afforded to a person of good character. I will also take into account that this is the offender’s first time in custody.

Additional aggravating factors

120. Both the Crown and Mr Butterfield submitted that the Court would also take into account for the relevant offences (and avoiding any double counting due to the elements of the offence) two additional statutory aggravating factors, being that the offences were committed in the home of the victims and that the offender abused a position of trust and authority in relation to the victims.

121. However, given that where relevant I have taken these factors into account when assessing the objective seriousness of that offence, I will not now again take this into account in determining the appropriate sentence.

The offender’s subjective case

122. At the time of these offences the offender was 47 years old. He is now 50.

123. At sentence, the offender relied upon a bundle of material including a psychological report by Dr Thomas Dornan dated 3 June 2025, a handwritten letter by the offender, certificates of attainment for courses completed in custody, and character references from his sister, aunt and ex-partner (the mother of his children, not JV).

Psychological report of Dr Dornan

124. Dr Dornan assessed the offender via AVL for approximately two hours, undertaking a semi-structured interview and comprehensive risk assessment. Aspects of this report and the offender’s background can be summarised as follows.

Upbringing and family history

125. The offender was born in New Zealand, the middle of three children. He also has a maternal half-brother. His parents separated when he was 8 years old. The offender said he did not see his father again until late adolescence, and that there was no particular bond between them. The offender recalled that his earliest memories of his father were of domestic violence. He said his father’s departure “changed everything”, as his mother had no capacity to care for him and his siblings and he was forced to take on a parenting role from early childhood.

126. The offender said the majority of his memories of his mother were of her “passed out drunk”, and that her alcohol use meant she physically, emotionally and psychologically neglected him and his siblings. He said his family lived in abject poverty and that he and his siblings often went hungry.

127. He recalled a time that he and his siblings went to stay with his mother at a rehabilitation program and said he was sexually touched by a pair of male and female staff members. He said this occurred “maybe every second night.”, although he told Dr Dornan that he did not consider whether or not this behaviour was abusive or inappropriate, commenting that “it was just normal”. He also suggested that this was likely the first time he had received “real affection” from an adult and may have internalised the abuse. Dr Dornan stated that the offender “did not believe he experienced any significant impact on his mental health as a direct result of this abuse, indicating that he may have repressed any negativity.”

128. The offender’s mother remarried when he was 10 years old. He told Dr Dornan that his stepfather was affiliated with a gang in New Zealand and was violent and abusive towards both the offender and his mother. He said his stepfather would pay him “to do work and other stuff”, which allowed him to feed his siblings.

129. The offender estimated that due to his family’s financial instability, he had moved approximately 27 times by the time he was 14. The offender left the family at this age and said he had virtually no contact with his mother (who has now passed away) since then.

130. The offender spent the next few years effectively homeless, either staying with friends or family members for brief periods, before he moved to Australia just prior to his 18th birthday.

131. The offender described maintaining a positive relationship with his sister across the years but indicated that both of his brothers were problematic drug users and are now deceased.

Education and vocation history

132. The offender reported to Dr Dornan that he struggled with schooling and was a poor student, attributing this to his family’s instability and his struggle to control his emotions. He said he would regularly truant high school in order to earn money and that he was expelled from a number of schools, though noted that he excelled at sport.

133. He told Dr Dornan that he would sometimes “offer sexual favours to teachers to get [him] out of trouble”, and that a number of teachers, both male and female, “took [him] up on that offer.” Dr Dornan stated that the offender’s conceptualisation of sexuality as a transactional tool “suggests profound disruption to healthy sexual development and attachment formation.”

134. After travelling to Australia, the offender worked with his father as a sheep shearer before moving to Orange and studying carpentry and joinery at TAFE. He remained in the building industry in varying trades for a number of years before deciding to become a “road train truck driver”. He has also worked for a number of construction companies as a driver in recent years.

Experience in custody

135. The offender reported that although gaol was the “last place” he wants to be, he “was one of those people who makes the best out of any situation”. He told Dr Dornan and that in order to stay “engaged” he has been motivated to undertake programs where he could and consequently, he has completed approximately 12 remand-based programs whilst in custody. He also told Dr Dornan that he is motivated to do any work or programs available but that opportunities are limited whilst on remand.

136. The offender told Dr Dornan that he has witnessed “a fair bit of violence in gaol” but has “stayed out of it’ and has managed to avoid conflict.

137. The offender also told Dr Dornan that he would likely engage in any treatment programs available to avoid reoffending and had plans on release to return to New Zealand.

Medical history

138. The offender denied having any significant medical issues or injuries but reported that prior to entering custody he was placed on the anti-depressant Sertraline, and that he was prescribed dexamphetamine for symptoms of ADHD. He said he prioritised his antidepressant medication over the stimulant-based medication.

139. The offender told Dr Dornan that he was not being prescribed medication in custody, and other than *“*overthinking things occasionally” he “wasn’t going too badly”.

Alcohol, gambling and drug use

140. The offender said that he first began drinking alcohol in adolescence and confirmed he would consume it on a daily basis. He estimated that over a weekend, he would consume “at least 12 beers, and two or three bottles of Jack Daniels”. He told Dr Dornan that he was intoxicated “on the night of the offence”, but that this was not a common occurrence for him.

141. The offender began using cocaine in his twenties and this persisted episodically across the years. He said he was using cocaine during the period of offending. The offender also reported some experimentation with MDMA and cannabis but denied any regular or persistent use of those drugs.

142. The offender said “his biggest issue” was his use of cigarettes but has achieved abstinence from tobacco in custody. He endorsed some problematic gambling when using cocaine and alcohol but denied any persistent issues across the years.

143. Dr Dornan was of the opinion that the offender meets the criteria for Alcohol Use Disorder, moderate, in early remission, in a controlled environment, and Stimulant Use Disorder, mild, in early remission, in a controlled environment.

Relationship history

144. The offender stated that he has had three long term relationships, and is the father of two sons, now 12 and 10, from his second relationship. Despite seeing his sons regularly when they were younger, he does not have a relationship with them at present.

145. The offender said that attempting to contact his children is what led to him breaching the AVO his ex-partner had taken out against him.

146. In relation to the mother of the victims in the present matters, the offender said they met via Facebook marketplace and were in a relationship for 12 months. He told Dr Dornan that when she left the relationship this was not particularly upsetting for him as the relationship was “far too toxic anyway”. The offender said that she “was always on ice” and was getting kicked out of her or her parents’ place.

147. The offender also said that he was using “quite a bit of alcohol and cocaine” at the time and “wasn’t think**ing too hard.”

148. In relation to the victims, the offender said, “it was like being an instant dad” but “without the love”**. He said that he would often feel sorry for the children as they “never really had much”, commenting that he would “buy then things they never had”**, even rented a house for a them to live in and that while he “got on OK” with the victims, they “would just use [him]” or “take advantage of [him]”. I note this is explored later in Dr Dornan’s report.

Opinion concerning the traumatic childhood experiences

149. Dr Dornan stated that in his opinion the offender’s relationship pattern reflects severe attachment avoidance rooted in his traumatic childhood experiences of parental abandonment, domestic violence and maternal neglect.

150. Dr Dornan opined that individuals with avoidant-dismissive attachment styles, which the offender appears to have, find it difficult to tolerate emotional intimacy, valuing independence to the point where they feel uncomfortable with closeness in romantic relationships. Dr Dornan reported that the offender’s repeated entry into relationships followed by abrupt departures without distress suggest a compulsive pattern driven by social expectations rather than genuine connection capacity.

151. Dr Dornan also reported that the offender’s “inability to love” despite “caring for people” indicates profound emotional disconnection creating a “paradoxical pattern where [the offender’s] attachments needs have persisted, but his emotional availability remains com**promised, manifesting as relationship-seeking behaviour without genuine intimacy capacity*.”*

Sexual functioning

152. The offender reported to Dr Dornan that he progressed through puberty and became sexually aware at around the age of 8. He said his first consensual sexual experience occurred when he was 13 years old with a 16-year-old female friend.

153. The offender stated that he has had “maybe 300 female and 180 male partners”. He said he did not consider himself to be either bisexual or “anything else”, suggesting that he was “just whatever” and attracted to both men and women. The offender also said that he had “sold myself a few times”, explaining that this occurred when he was intoxicated and for no other reason than *“*they were will**ing to pay for me.”

154. In exploring his sexual interests, the offender reported to Dr Dornan that he engaged in and was interested in a number of deviant or otherwise non-mainstream sexual practices, including group sex, transvestism, exhibitionism, voyeurism and sadomasochism, but denied any interest in bestiality.

155. He said he developed paedophilic/hebephilic interests after “being introduced to it online”, and that he had “tried everything else sexually” and was looking for new ways of being sexually stimulated. He advised Dr Dornan that a “gay guy” online showed him child abuse material and that it “sparked an interest”, commenting that with the benefit of hindsight he “would do everything over” but that “it was too late now.”

156. The offender denied any chronic or persisting sexual interest in children, stating “I just tried it, but it’s not my thing.” He said he did view child abuse material, as well as produced it, stating that his use was not persistent but rather just “a phase” in which he “just needed a new form of stimulation.” The offender went on to state that his engagement online via social media platforms was also related to his desire for new stimulation, suggesting that he became desensitised “and stopped thinking”.

The offending and Dr Dornan’s opinion on the offender's explanation

157. In relation to his offending, the offender provided an account to Dr Dornan that is entirely inconsistent with the agreed facts.

158. He said he had been drinking and using cocaine “every single weekend”, and that the victims’ mother would “just dump the kids on [him]”. He told Dr Dornan that the offences began after he had become intoxicated and “woke up with one of [the victims] playing with [him]”. He said he was confused by the situation and “probably should’ve woken up and said no”, but instead “just went along with it.”

159. The offender also suggested to Dr Dornan that many of the offences did not occur as they were portrayed and placed blame on the victims, saying that much of the child abuse material that was produced “was the kids’ idea”. He also said, “they would ask [him] for anything when [he] was drunk and [he] would do it”, stating he “didn’t want to do any of it”, but that the victims would pressure him into it.

160. Despite this, Dr Dornan stated that the offender was able to demonstrate some insight into the impacts of sexual abuse, stating that he was aware his offending behaviour “made me shit”, and repeatedly commenting to Dr Dornan that, “I’m just a shit person”.

161. The offender said he was aware that his actions would have long term consequences for the victims, and that the victims “were already damaged kids” and he “should have stuck to what [he] originally believed and broke the cycle.” He suggested to Dr Dornan that it was his consistent and problematic alcohol and cocaine use that led to his poor decision making and said, “it was clear he needed to make changes”.

162. Dr Dornan opined that the offender’s offending behaviour is “underpinned by a combination of deviant sexual interests, entrenched cognitive distortions, and impaired judgment, secondary to chronic substance use.” Dr Dornan stated that the offender’s claim that he developed paedophilic/hebephilic interests through online exposure reflects a minimisation of responsibility, externalising blame to others. Dr Dornan said the offender demonstrated significant cognitive distortions, including justifying his behaviour as a response to curiosity, intoxication or victim pressure. Dr Dornan stated that the offender’s statements diminish agency and deflect accountability.

163. Dr Dornan also reported that the offender’s narrative that the children initiated contact or that he was “confused”, reflects classic offender rationalisations often used to reduce guilt and deny harm. Dr Dornan was of the view that the offender’s reported history of impulsivity, risky behaviour and emotional detachment likely contributed to a reduced capacity for empathic reflection and inhibition.

164. Further, Dr Dornan was of the opinion that the offender’s compulsive seeking of novel stimulation, paired with disinhibited decision-making while intoxicated, significantly increased his risk of engaging in harmful sexual behaviour without insight or considerations of the consequences. Dr Dornan noted that any further analysis was not possible due to the offender’s cognitive distortions and lack of insight.

Psychological assessment

165. The offender reported to Dr Dornan that he suffered persistent periods of depression since experiencing significant trauma in childhood and adolescence. The offender also said that his mental health has been consistently poor, with his symptoms persisting to the present day.

166. The offender told Dr Dornan he experiences depressed mood, long-standing problems with sleep including persistent nightmares and troubled dreaming, often linked to his past traumas, including his sexual and physical abuse.

167. The offender told Dr Dornan that he had never engaged in any formal therapeutic intervention, stating that he instead used psychotropic medications to address his symptoms of poor mental health. However, the offender said that he “was open” to any interventions which would ensure he did not repeat his offending.

168. Ultimately, Dr Dornan assessed the offender as meeting the criteria for a diagnosis of Persistent Depressive Disorder, with mixed features, Post-Traumatic Stress Disorder and Avoidant Personality Disorder.

Future prognosis

169. Dr Dornan reported that several factors maintain the offender’s challenges with mental health, including his persistent avoidant attachment style preventing genuine intimate connections, ongoing cognitive distortions minimizing personal responsibility for his offending, and entrenched substance abuse patterns as primary coping mechanisms. Dr Dornan also stated that his profound emotional numbing and inability to form meaningful relationships will perpetuate isolation, and his psychological distress, lack of insight into trauma-related symptoms and continued reliance on maladaptive coping strategies will maintain his psychological dysfunction. Dr Dornan noted that the offender’s time in custody, while controlling his substance abuse, will not address his underlying trauma, depression or attachment difficulties, and without comprehensive intervention, his risk of reoffending remains elevated.

170. Ultimately, Dr Dornan stated that given his complex trauma history and entrenched personality patterns the offender’s prognosis is guarded but not hopeless. While his insight limitations and cognitive distortions present significant treatment challenges, Dr Dornan said his capacity for guilt, periods of stable functioning and expressed remorse suggest potential for therapeutic engagement.

Risk assessment

171. Dr Dornan assessed the offender using the Static-99R risk assessment tool, and concluded that the offender presents:

172. a high likelihood of future sexual violence

173. a moderate imminence of future sexual violence

174. a high severity of future sexual violence

175. a high case prioritisation.

176. Overall, Dr Dornan stated that the offender poses a high risk of sexual recidivism and future risk will “largely depend on maintaining abstinence from substances, accessing trauma-focused therapy, and developing healthy coping mechanisms to address underlying attachment and emotional regulation difficulties.” Key risk-elevating factors include his sexual deviance, coercion patterns, mental illness, substance abuse and relationship difficulties, while protective factors include his employment stability, accommodation security and cognitive functioning.

Other material tendered on sentence

Offender’s letter

173. The offender tendered a handwritten letter of apology to the Court. He expressed that he was deeply sorry for the things he had done and said he was not in his right mind or thinking clearly. He detailed his struggles with alcohol and drug abuse, as well as his symptoms of Attention Deficit Disorder.

Character references

174. The offender tendered letters of support from his sister, aunt and his ex-partner (the mother of his children). These letters echo much of what the offender told Dr Dornan about his family and upbringing.

Certificates of completion

175. Finally, the offender tendered several certificates of completion for courses he has completed in custody, including courses on drug and alcohol awareness, domestic abuse, and the Salvation Army’s Positive Lifestyle Program.

Sentencing considerations – subjective factors

176. Subjective factors are personal to the offender and are relevant to sentencing purposes including punishment, personal deterrence, rehabilitation, and the protection of society. A range of subjective factors may also be relevant to the assessment of the offender’s moral culpability for those offences.

Moral culpability - Background, mental health and sexual abuse considerations

177. An offender will be less blameworthy for an offence where the offender’s disadvantaged background in some way explains, relates to, or sheds light on the offending. A strict causal connection between the offender’s disadvantaged background and the offending is not required before a Court can make a finding of reduced moral culpability. Where there is a clear causal relationship between the offending and an offender’s background, the offender’s moral culpability may be significantly reduced. Where the connection is not as strong there may be less of a reduction.

178. However, it is also important to note that this may not necessarily mitigate the overall sentence imposed on an offender and that an offender’s deprived background does not necessarily have the same mitigatory relevance for all of the purposes of punishment. For instance, whilst an offender’s background may explain an aspect of their behaviour in the offending due to their inability to control their behaviour, their inability to control that behaviour may increase the importance of protecting the community from the offender.

179. An offender’s moral culpability may also be reduced if their mental health contributed to the commission of the offence in a material way, and a direct causal connection is not required: Lane v R [2025] NSWCCA 113 at [112]; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

180. Additionally, an offender’s own childhood sexual abuse can also be taken into account to reduce moral culpability provided the offender establishes on balance that the abuse occurred, and that the abuse was a contributing factor in the offending. However, a history of abuse will not automatically lead to a reduction in sentence. The important consideration is the consequences which flow from the earlier events. Further, the weight which should be given to the history of sexual abuse will very much depend on the facts of the individual case: RG v R [2025] NSWCCA 36 at [78].

181. It is also important to note that these considerations may not necessarily mitigate the overall sentence imposed on an offender. In Bugmy v The Queen [2013] HCA 37; 249 CLR 572 at [44] the plurality noted that an offender’s deprived background does not necessarily have “the same (mitigatory) relevance for all of the purposes of punishment”. For instance, an offender’s childhood exposure to sexual abuse and a reduced cognitive functioning may explain an aspect of their behaviour in the offending due to their inability to control that behaviour. But their inability to control or to engage in that behaviour “may increase the importance of protecting the community from the offender”.

This offender

182. This offender experienced a maladjusted childhood and adolescence significantly damaged by severe trauma that included poverty, parental abandonment and chronic maternal neglect due to alcoholism, domestic violence, sexual abuse and exploitation and homelessness. These factors are all relevant to a reduction of his moral culpability and will be given “full weight” in the sentencing purposes as matters in mitigation in his subjective case.

183. I also accept, based on Dr Dornan’s unchallenged opinion, that these experiences correlate with his mental disorders and cognitive distortions, and whilst these did not directly cause his offending behaviour, they appear to have contributed in a material way. That said, I also note that any corresponding reduction in moral culpability must be seen in the context of his offending.

184. This offending occurred over an extended period of time, involved repeated and different sexually disturbing conduct in circumstances where the offender well knew that it was wrong. Accordingly, whilst these factors will lessen the offender’s moral culpability to a degree and result in a moderation in the need for general deterrence, the offender’s moral culpability remains high and that reduction and moderation will be limited.

Mental health issues and custody

185. The offender meets the criteria for persistent depressive disorder, with mixed features, and post-traumatic disorder and avoidant personality disorder. I will take these past and future mental health issues into account when determining the appropriate sentence. Whilst the offender currently appears to have adjusted well in custody, I will take these issues into account as they are likely to make his time in custody more difficult.

Remorse and insight

186. A finding of genuine remorse requires an offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any harm he has caused.

187. Mr Butterfield submitted that the court could find that the offender is remorseful based upon his guilty plea (as indicating some acceptance of limited responsibility), his expressed concern to Dr Dornan “for victim welfare and recognition that is actions were harmful”**, and his handwritten letter of apology.

188. However, given the unsworn and untested nature of his apology and that the offender’s compromised responses to Dr Dornan clearly reflect a “minimisation of responsibility*, externalising blame to others for his action**”* and “justifying his behaviour as a response to curiosity, intoxication, or victim pressure*”**,* I am not able to find that the offender is genuinely remorseful.

189. Further, the offender’s “compulsive seeking of novel stimulation” and “disinhibited decision-making”, along with his unwillingness to acknowledge his demonstrated sexual interest in children, stating that “he tried it*, but* it’s not my thing”**, raises significant concerns about his lack of insight into his offending behaviour.

Risk of reoffending and prospects of rehabilitation

190. Given that the offender has been assessed as being a high risk of sexual recidivism with a high likelihood and severity of future sexual violence and that without comprehensive intervention his risk of reoffending would remain elevated, the Court holds significant concerns for his risk of reoffending.

191. Also, despite the offender’s statement that he is prepared to engage in appropriate treatment and undertake future custodial programs, given the complexity of his deviant sexual interests, entrenched cognitive distortions and poor insight, the Court holds significant concerns about his prospects of rehabilitation.

The objective of rehabilitating the offender – s.16A(2AAA)

192. I have had regard to the objective of rehabilitating the offender for the Commonwealth offences, including by considering whether it is appropriate to impose conditions about rehabilitation or treatment options (when making an order), and in determining the length of any sentence or non-parole period, to include sufficient time for the person to undertake any rehabilitation program.

193. To address this, I will impose a condition of release relating to the offender’s rehabilitation.

194. Rehabilitation is also an important sentencing consideration for the State offences. However, the objective of rehabilitation does not displace the requirement for a sentence to be of a severity appropriate in all of the circumstances of the offence. The principal purpose of rehabilitation is to protect the community by ensuring the offender is required to undertake treatment in custody or upon release to prevent reoffending.

Synthesis

Purposes of sentencing

195. The intuitive process of sentencing ultimately involves synthesising the objective seriousness of the crime and the subjective circumstances of the offender to arrive at a sentence that best meets the purposes of sentencing.

196. The different purposes of sentencing will often overlap and may point in different directions and reach different conclusions. Of necessity, the promotion of the rehabilitation of an offender, if it can be achieved, is the best way of ensuring the offender does not commit further similar offences.

197. Despite the promotion of rehabilitation, a different conclusion or different synthesis may be arrived at when factoring into the sentence adequate punishment, deterrence, denunciation of the conduct and recognition of the harm to the victim. In any event, each of the purposes of sentencing are guidelines to the fixing of an appropriate sentence and none of them can, nor should, be considered in isolation.

198. I will balance all these purposes when sentencing this offender and apportion the appropriate weight to each in the process of assessing the necessary sentence.

The offending and this offender

199. The offending involved this offender, over the course of three months, subjecting two child victims, under his care and in their home, to multiple depraved acts of sexual defilement and exploitation. He betrayed their trust, personal dignity and innocence, committing some of these heinous acts brazenly whilst their mother was in the home, and at other times by recording these despicable acts of molestation and then transmitting these to other like-minded perverted individuals. Given the serious nature of this offending, significant weight will be given to retribution, denunciation and recognising the harm to the victims, whilst also holding the offender to account for his offending.

200. As mentioned earlier, this offender’s moral culpability is somewhat reduced by virtue of his background and childhood history of sexual abuse, resulting in a moderation of general deterrence. However, that is only a minor reduction, and general deterrence remains a very important consideration.

201. Personal deterrence will play a larger role due to my findings in relation to his prospects of rehabilitation and compromised insight.

202. Given the offender’s high risk of violent sexual recidivism, weight will also be given to the protection of the community.

Full time imprisonment

203. Having regard to the purposes of sentencing, I am satisfied that no penalty other than lengthy sentences of full-time imprisonment are appropriate for both the State and Commonwealth offences. No submission was made to the contrary.

The sentences

Parity – Sequence 1: Use carriage service to transmit child material

204. Before arriving at an appropriate sentence for Sequence 1, I will consider the sentence imposed on the co-offender, Neil Kinnard.

205. The doctrine of parity is a norm of equal justice and an essential element of the rule of law. The principle of equal justice requires, as far as the law permits, that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different.

206. On 24 October 2025, Neil Kinnaird was sentenced after trial for three child abuse material offences and received an aggregate sentence of 5 years and 10 months’ imprisonment: R v Kinnaird [2025] NSWDC 501.

207. Count 1 was a charge of accessing child abuse material. This charge related to the three videos the offender sent to Kinnaird and are items A, B and C in the agreed facts for Sequence 1. The indicative sentence for this offence was 1 year and 6 months imprisonment.

208. Count 3 was a charge of causing child abuse material to be transmitted to him from the offender. This charge related to items D, E, F, G, I and J in the agreed facts for Sequence 1. The indicative for this offence was 5 years.

209. This offender pleaded guilty and has a far more compelling subjective case than Mr Kinnaird. However, given this offender’s closer proximity to the victims, his high likelihood of reoffending and poor prospects of rehabilitation, the starting point for this offender’s indicative sentence will be longer than Mr Kinnaird’s

The aggregate sentences and notional structure of the sentences

210. I will impose two separate aggregate sentences, and I must set out the sentences that I would have imposed had separate sentences been imposed for each offence. After applying the 25% discount for each offence I indicate the following sentences.

| Sequence / Offence | Maximum Penalty and Standard Non-Parole Period | Indicative Sentences (with 25% discount applied) | | STATE OFFENCES | | 1) | Seq 2 – s 66A(1) of the Crimes Act 1900 (NSW) – sexual intercourse with a child under 10 years | MP: Life imprisonment SNPP: 15 years | 7 years (NPP 4 years, 3 months) | | 2) | Seq 11 – s 66A(1) of the Crimes Act 1900 (NSW) – sexual intercourse with a child under 10 years | MP: Life imprisonment SNPP: 15 years | 7 years (NPP 4 years, 3 months) | | 3) | Seq 12 – s 66A(1) of the Crimes Act 1900 (NSW) – sexual intercourse with a child under 10 years | MP: Life imprisonment SNPP: 15 years | 7 years, 6 months (NPP 4 years, 6 months) | | 4) | Seq 13 – s 66A(1) of the Crimes Act 1900 (NSW) – sexual intercourse with a child under 10 years | MP: Life imprisonment SNPP: 15 years | 7 years (NPP 4 years, 3 months) | | 5) | Seq 14 – s 66A(1) of the Crimes Act 1900 (NSW) – sexual intercourse with a child under 10 years | MP: Life imprisonment SNPP: 15 years | 7 years (NPP 4 years, 3 months) | | 6) | Seq 15 – s 66A(1) of the Crimes Act 1900 (NSW) – sexual intercourse with a child under 10 years | MP: Life imprisonment SNPP: 15 years | 5 years, 9 months (NPP 3 years, 6 months) | | 7) | Seq 8 – s 91G(3) of the Crimes Act 1900 (NSW) – aggravated use of child under 14 years to make child abuse material | MP: 20 years | 5 years, 6 months | | | Form 1 to Seq 8: Seq 19 – s 66EB(3) of the Crimes Act 1900 (NSW) – grooming a child under 16 years of age for unlawful sexual activity | --- | --- | | | Form 1 to Seq 8: Seq 10 – s 91H(2) of the Crimes Act 1900 (NSW) – possess child abuse material | --- | --- | | 8) | Seq 22 – s 91G(3) of the Crimes Act 1900 (NSW) – aggravated use of child under 14 years to make child abuse material | MP: 20 years | 1 year, 3 months | | 9) | Seq 26 – s 91G(3) of the Crimes Act 1900 (NSW) – aggravated use of child under 14 years to make child abuse material | MP: 20 years | 2 years, 3 months | | | Form 1 to Seq 26: Seq 20 – s 66EB(3) of the Crimes Act 1900 (NSW) – grooming a child under 16 years of age for unlawful sexual activity | --- | --- | | 10) | Seq 27 – s 91G(3) of the Crimes Act 1900 (NSW) – aggravated use of child under 14 years to make child abuse material | MP: 20 years | 1 year | | 11) | Seq 24 – s 66C(2) of the Crimes Act 1900 (NSW) – aggravated sexual intercourse with a child 10 years or older and under 14 years | MP: 20 years SNPP: 9 years | 6 years, 9 months (NPP 4 years, 1 month) | | 12) | Seq 25 – s 66C(2) of the Crimes Act 1900 (NSW) – aggravated sexual intercourse with a child 10 years or older and under 14 years | MP: 20 years SNPP: 9 years | 6 years, 6 months (NPP 3 years, 8 months) | | 13) | Seq 21 – s 66DB(a) of the Crimes Act 1900 (NSW) – intentionally sexually touching a child 10 years or older and under 16 years | MP: 10 years | 2 years, 6 months | | COMMONWEALTH OFFENCES | | 14) | Seq 1 – s 474.22(1) of the Criminal Code Act 1995 (Cth) – use carriage service to make available child abuse material | MP: 15 years and/or fine of 900 penalty units | 5 years | | | Form s 16BA to Seq 1: Seq 17 – s 474.27A(1) of the Criminal Code Act 1995 (Cth) – use carriage service to send indecent material to a person under 16 years of age | --- | -- | | 15) | Seq 4 – s 474.22(1) of the Criminal Code Act 1995 (Cth) – use carriage service to make available child abuse material | MP: 15 years and/or fine of 900 penalty units | 9 months | | 16) | Seq 5 – s 474.22(1) of the Criminal Code Act 1995 (Cth) – use carriage service to make available child abuse material | MP: 15 years and/or fine of 900 penalty units | 2 years, 3 months | | 17) | Seq 7 – s 474.22(1) of the Criminal Code Act 1995 (Cth) – use carriage service to make available child abuse material | MP: 15 years and/or fine of 900 penalty units | 2 years, 3 months |

The State offences

211. There are 13 State offences committed over the course of 8 weeks (between 10 December 2022 and 12 February 2023). There are distinct offences involving two separate victims, but the offences are all part of a course of conduct. Some of the sequences were committed on the same days (Sequences 2, 11 and 12 and Sequences 13, 14 and 24).

212. When sentencing for multiple offences, whether they involve discrete offending against multiple victims, or multiple offences with overlapping elements of criminality, care needs to be taken. The question of whether a series of sentences should be served concurrently or cumulatively is considered after determining the appropriate sentence for each offence. If one penalty could not fully comprehend and reflect the criminality for the other offence, they must be partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the offences.

213. When sentencing for multiple offences, the nature of the charges may compel concurrency. On the other hand, particularly where the offences are separated in time and/or relate to multiple victims, accumulation is required. I must also take care to ensure that the accumulation of a number of lengthy periods of imprisonment does not result in a disproportionate level of punishment.

214. I must also consider whether the appropriate punishment for each offence could result in a sentence that is unduly harsh. An unduly harsh sentence may crush any motivation for reform and engagement in rehabilitation. This will require some moderation of the sentences to be indicated, and a moderation of any accumulation between the counts.

The Commonwealth offences

215. Questions of concurrency and accumulation of Federal sentences are governed by s 16A(2)(k) of the Crimes Act 1914 (Cth) to ensure that the offender is adequately punished for the offence. However, the principle of totality is applicable. Ultimately, the overall sentence must reflect the total criminality of all of the offences for which the offender is to be sentenced.

216. There is also a presumption in favour of full accumulation when a court is sentencing an offender for a Commonwealth child sex offence. This requirement does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances. If the court does so, it must state its reasons for imposing the sentence in that manner.

217. Given that there is great degree of overlap as between the four offences, as the offending is linked in time, nature and motivation, I am satisfied that full accumulation is not warranted. However, as the charges reflect different criminality there will be a small degree of accumulation. As Sequence 1 is a more serious, separate and distinct aspect of criminality, there will also be a small but greater degree of accumulation with the other three sequences.

Special circumstances

218. In relation to the State offences, as it is clear from the offender’s risk of reoffending and his unresolved mental health issues that he will require significant support and lengthy supervision if he is to reintegrate back into the community without committing further offences, I find special circumstances such that the statutory ratio will be varied. I also make this finding due to the notional accumulation in the structure of the sentence. However, given the length of the overall term of this aggregate, that variation will not be significant.

Orders

219. Matthew TUMAI, in accordance with your guilty pleas you are convicted of the 17 offences I have referred to.

220. In relation to the four Commonwealth offences, having already allowed for a 25% discount for your pleas of guilty and taking into account the matters on Form s.16BA, you are sentenced to an aggregate sentence of 7 years**’** imprisonment commencing on 9 March 20****23 and expiring on 8 March 2030 with a non-parole period of 4 years and 7 months.

221. In relation to the 13 State offences, having already allowed for a 25% discount for your pleas of guilty and taking into account the matters on the two Forms 1, you are sentenced to an aggregate sentence of 26 years and 6 months**’** imprisonment commencing on 9 March 2026 and expiring on 8 September 2052 with a non-parole period of 18 years.

222. The effect of these two aggregate sentences is that you will serve an overall effective head sentence of 29 years and 6 months**’** imprisonment commencing on 9 March 2023 and expiring on 8 September 2052 and an effective non-parole period of 21 years. You will be eligible for release on 8 March 2044

223. To address the offender’s rehabilitation, I impose a condition of release that the offender be supervised by the Department of Community Corrections, and such supervision include compliance with all reasonable directions as to ongoing treatment and counselling. A condition will also be that on release the offender should be referred to a NSW Corrective Services psychologist for completion of a sex offender’s risk assessment and guidance with case management.

Crimes (High Risk Offenders) Act 2006 (NSW)

224. I am also obliged to tell you about the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to “serious offences” including the offences for which you have been sentenced.

225. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you would be a “high risk offender” who poses an unacceptable risk of committing a serious offence.

226. It is therefore in your interests to engage in rehabilitation opportunities that may be offered to you during your sentence.

227. I also ask that a copy of Dr Dornan’s report dated 3 June 2025 be provided to Corrective Services to assist with the offender’s treatment, rehabilitation and supervision.

Child Protection Registration Order

The Order

228. Each of these 17 offences is a registrable offence under the Child Protection (Offenders Registration) Act 2000 (NSW) (“the CPOR Act”) and pursuant to s 3C of that Act I will make a single Registrable Person Order (“RPO”).

The specified period of the RPO

229. The Court must also specify the reporting period for the RPO calculated in accordance with section 3I of the CPOR Act, having regard to the offences for which the offender is sentenced.

230. These offences are Class 1 and Class 2 offences under the CPOR Act. Section 3I(b)(ii) ordinarily requires the Court to specify a reporting condition of 15 years as a finding of guilt has been made for each of the registrable offences.

231. However, pursuant to section 2E, the Court may exercise its discretion to treat those registrable offences as a single registrable offence, such that a reporting period of only 8 years would be required, “if satisfied it is appropriate to treat the offences as a single offence.”

232. Section 2E provides a non-exhaustive list of relevant considerations.

Finding on period

233. Having regard to the different offences committed, the two victims involved, and the extended period of time over which the offences occurred, I find that it is not appropriate to treat the offences as a single offence. The reporting period for the RPO will be 15 years. It will begin when the offender ceases to be in government custody for the offences.

Notice Requirements

234. I am required to arrange for the following to be given to the offender including, as he is not physically present in the court, a copy of the order, written notice of the offender’s reporting obligations, and the consequences of failing to comply with his reporting obligations.

235. I am also required to verbally explain the matters specified in the notice to the offender in language that is readily able to be understood.

236. Mr Tumai, I now need to explain to you what a registrable person is and the obligations that you have under that, and the consequences for failing to comply with that order.

237. Firstly, the Court has made a registrable person order under the relevant Act, which is the CPOR Act. That makes an offender a person required to be recorded on the New South Wales Child Protection Register. The period of your order will be 15 years, commencing from the date of your release from custody. The end date of that reporting period may be automatically extended for a number of reasons including if at any time you remain in custody. You will be subject to reporting obligations throughout this reporting period.

238. There is an ongoing obligation to make reports of particular information to police within a particular time period. Further, a written notice of your reporting obligations will be issued to you for your signature and acknowledgment, and you will be notified of these various reporting obligations. You should read the document carefully and seek legal advice if you do not understand any aspect of that document that you receive.

239. Your reporting obligations include that you will need to make an initial report to a police station, attending in person with identification documents within five days after your release from custody or otherwise after the date of sentence. You must complete an initial personal information report providing various personal information, including with respect to your address, any identifying marks or tattoos you have, your work, your club or organisation affiliations, any cars that you use, your use of communication devices and services, any prior criminal record or time in custody in New South Wales or elsewhere.

240. You must also provide information in relation to your passport details, any travel outside of New South Wales and any contact or residence with a child. Further, throughout your reporting period you must then report in person to a police station within a specified period of time. If there are relevant changes to relevant reportable circumstances, you must also report in person to a police station to complete an annual report each year.

241. Further, you must also report information with respect to any intended international travel or travel within Australia outside New South Wales, and after returning to New South Wales.

242. Further, during the reporting period you may also, without notice, be subject to checks by the police to ascertain if you are complying with your reporting obligations and under a section of the CPOR Act, police hold powers to enter any property or vehicle to conduct these checks and may require you to cooperate with police in gaining access to data held in any electronic device.

243. Finally, there are sections of the CPOR Act which provide for offences of failing without reasonable excuse to comply with the reporting obligations, or of furnishing false or misleading information in connection with the complying with reporting obligations. Such offences are punishable by imprisonment of up to five years or a fine of $50,000, or both. As I indicated, a document will be provided which will be written notice of these obligations and the consequences of not complying with those reporting obligations. Mr Tumai, that document will be provided to you while you are in custody.

244. I must also, as soon as practicable after the order is made, arrange for a copy of the order to be given to the Commissioner of Police and the supervising authority for the offender.

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