Pseudonyms will be used and there is to be no publication of the name that might identify either the complainant or the offender.
It needs to be stated and restated that anyone who offends in a sexual manner against a child commits a serious offence. Given the maximum penalties that apply or applied, it is expected that significant penalties will be imposed upon them. Those penalties and their maximums reflect the community understanding and expectation that any victim of a child sexual assault may suffer trauma and other injury, often longstanding.
Aaron Ware committed serious offences against a child who viewed him as her father, a child he purported to love and a child whose care was entrusted to him. He breached his responsibilities to her.
The matter now before the Court came to the attention of police when the complainant in this matter found the courage to come forward. To his credit, unlike many offenders, Ware accepted responsibility for his crimes. In the Local Court he said he would plead guilty to a number of offences that occurred over many years. He adhered to those pleas today.
His early acceptance of responsibility is a matter I take into account generally. He must also have a reduction in the otherwise appropriate sentence for each matter of 25% to reflect the utilitarian value of those early guilty pleas. The sentence I will impose will be in aggregate form. I will indicate an appropriate sentence for each offence which will take into account the early plea reduction. There must be some accumulation as between the offences to reflect their individual nature and the period of time over which the offences occurred. I will attempt in the process of accumulation not to erode that 25% benefit.
After the complainant read her Victim Impact Statement to the Court, I explained to her that no victim of a child sexual offence should equate the harm she suffered with the punishment ultimately imposed. They are two incommensurable things. A court must take into account all relevant features and from them synthesise an appropriate penalty that reflects the harm that was done, but also the case made for the offender. Punishment must be proportionate and consistent with principle.
Ware was born in 1964. The complainant is currently 36 years old. Her mother formed a relationship with Ware. They lived in Wollongong and then on the Central Coast. Although Ware is not her father, he took on the role of stepfather from when the child was about a year old. There was a period in 1992 when her mother and the offender separated, and she was in the care of Ware.
In June 2023 police arrested Aaron Ware at his home in Queensland. Sometime before, his stepdaughter had gone to New South Wales police and complained that sexual offences were committed against her from when she was a young child. She said that the offending continued until she was a teenager.
[2]
Agreed Facts
There are Agreed Facts before the Court. I will give a short summary of the five matters that will be considered today, three of which are for sentence.
Sequence 1 is a charge of sexual intercourse with a person under the age of ten years, a charge pursuant to s 66A Crimes Act 1900 (NSW). It occurred in 1992 while the offender was caring for the child after her mother had left. She was five years old. She was in bed in her home. The offender pulled down her underpants and licked her vagina. She lay there staring at the ceiling while he continued this act for a few minutes. After the event, he left her saying, "Sorry". The offender called this act "tickling".
The next day he revealed to her that he was not her biological father.
Sequence 2 is another act of sexual intercourse. It occurred during the same weekend. It is to be dealt with on a Form 1. The child had told the offender that she did not want to be tickled anymore, but on this night, he again went to her bed, took off her underwear and licked her vagina. He left and said, "Sorry".
Sequence 3 is an offence charged pursuant to s 61M(2) Crimes Act, as it then was. It occurred when the complainant was six or seven, visiting at her grandmother's home. She was wearing a swimsuit and she was near where the offender was sitting. She sat on his lap. When she did so, he rubbed her vagina with his fingers on the outside of her swimmers for a few seconds.
The relationship between the complainant's mother and the offender ended, but they remained in contact.
Sequence 8 is a charge pursuant to s 61M(1) Crimes Act, as it then was, of aggravated indecent assault. It is also on a Form 1. The complainant was then in Year 7 and aged 11 or 12. She was at home with the offender in southern Wollongong while her mother was at work. The offender lay behind the victim, pulled her underwear down and placed his penis between her legs. His penis was hard. It slipped near the child's vagina, causing her to flinch due to pain.
During this period the child and the offender spent time together and he encouraged her to wear short dresses and show off to him.
Sequence 7, for sentence, is a charge of sexual intercourse with a child above the age of ten, under the age of 14: Crimes Act, s 66C(2). It occurred when the child was then 13 years old.
The offender and her mother had been drinking. In the early hours of the morning the offender came into her bedroom and again performed oral sex on her. Again, after he finished, he said he was "sorry" and left the bedroom. This was the only time the complainant could recall the offender doing something while another adult was in the home.
Some disclosures were made to family members. In March 2020 the child, now adult, reported the matters to police.
[3]
Maximum penalties at the time
At the relevant time, an offence of sexual intercourse with a child under the age of ten carried a maximum penalty of 20 years imprisonment: Crimes Act, s 66A. The aggravated form of the indecent assault offence carried a maximum penalty of 10 years imprisonment pursuant to s 61M91 Crimes Act; as did the offence of aggravated sexual intercourse with a child aged between 10 and 14: Crimes Act, s 66C(2).
[4]
Matters on the Form 1
While I do not sentence for the matters on the Form 1, they can, and will here, be taken into account when I formulate an appropriate sentence for Sequence 1. They were both serious crimes. They mean that greater weight can be given to personal deterrence and retribution when I consider the matter to which they relate: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002; (2002) 56 NSWLR 146; [2013] NSWCCA 115 at [39]-[42]. They also are indications of the context in which the offence occurred and show that the offending was not isolated. The increase need not be notional. Sometimes, given the seriousness of the matter, it can lead to a substantial increase in the otherwise appropriate sentence: Attorney General's Application at [18].
[5]
Objective seriousness
I need to indicate individual sentences and formulate or synthesise a just and appropriate sentence that reflects the totality of the offender's actions. I do not simply add one sentence to the other, that could lead to a disproportionate sentence. The purposes of sentencing apply to each of the matters that have to be indicated and the aggregate sentence.
The sentences to be indicated must be proportionate to the harm done. It is not in any dispute that each was a very serious offence:
Each requires some discrimination from the other, given the nature of the charge, the available maximum penalties, and when each offence occurred. But it is not in dispute that they occurred in the context of a stepfather / daughter relationship.
Each occurred in a home and / or a bed where the child should have felt safe and protected.
Each offence involved the offender taking advantage of his parental control of the child.
Each involved a gross breach of trust that a stepfather is meant to show to a child he treated as his own flesh and blood.
There was no overt coercion or threat of violence, but none was needed, given the age of the child involved.
In relation to the acts of sexual intercourse, every act of intercourse against a child is treated as extremely serious. The age of the child relative to the age of the offender and the age range in the offence are important; the younger the child the more serious the offence.
In submissions for the offender, his counsel, Mr Booker, points to matters that would further aggravate an offence such as this. As I indicated at the time, this Court, sadly, has to deal with even more serious types of sexual intercourse where physical harm and damage is caused to children. Here there was no physical harm demonstrated, but courts do not underestimate trauma caused to children by, and the psychological harm of, premature sexual activity on one so young.
The period over which each offence occurred could not be described as brief. As is obvious, from the material before me, these were not isolated incidents, but part of a pattern of behaviour; a pattern of use and abuse of a child for his own prurient purposes.
Note: The proceedings were interrupted at this point as the offender (who was appearing via AVL) had what was appeared to be a "panic attack" or "chest pains". We adjourned so Corrective Services officers could arrange for medical intervention. After that occurred the sentencing continued after the luncheon adjournment.
The third matter for sentence occurred when the child complainant was older, 13 years old. Again, their relative ages, and age range for the offence, 10 to 16, is an important consideration. She was in the middle of that range. The element and circumstance of aggravation of the offence is "under authority". That is term is to the similar and related sentencing factor of "breach of trust", but they are separate concepts. Both have to be synthesised, recognising that they have factors in common that should not be double counted.
[6]
Victim impact
A stark reminder, if one is required, of the impact of these matters was given by the complainant's Victim Impact Statement, read to the Court today. That statement gave her, perhaps, the only opportunity to tell her story and to put her history on the record. It gave her the opportunity to bring to the Court's, the community's, and the offender's attention, information from the heart about the impact of this offending on her.
She spoke of how she was robbed of her childhood by someone she loved as a father, and how control of her own life and her own development was taken from her by him. She told the Court that the "trauma never leaves". She spoke of how as a young child she sought to normalise many confusing feelings. As she matured, she came to realise that there was nothing normal in what was occurring to her; things were "not right". She knew that at the time, and as she matured it became patently obvious. She told the Court of the long-term impacts of the trauma suffered. Impacts on her relationships and of her own abuse of alcohol and other drugs. She spoke of self-harm episodes.
She is aware it is not her fault. She tells me she is now better able to meet the challenges that life brings, but the scars will remain with her.
The matters revealed were, sadly, not unusual and were reflected in the material I have read in many cases I have had to deal with. It is one of the reasons why significant penalties are fixed by Parliament and significant penalties are imposed by the Court in matters such as this.
[7]
Other matters
The offender has a criminal record. It means he is not entitled to the leniency often given to first offenders, but I note that leniency is rarely given in matters such as this, particularly where there was offending over many years.
He has no gaol infringements and is presently working in the kitchen.
I have already indicated that his acceptance of responsibility at a relatively early time is significant and has value beyond the purely utilitarian value of the plea. It meant that a lengthy criminal trial was avoided. The complainant did not have to relive the experiences of abuse. Given there has been significant delay in reporting the matter, the admissions by way of plea meant that there was not a prospect of a jury reaching a different conclusion than the facts revealed here justify.
[8]
Delay
There has been a delay, and that delay has to be considered as a mitigating factor when I come to sentence. However, I must also take into account the provisions in s 21B Crimes (Sentencing Procedure) Act 1999 (NSW) and apply the pattern of sentencing that applies today, not back at the time the offences were committed.
That, as the Court of Criminal Appeal noted recently in Carey v R [2024] NSWCCA 90, has some problematic aspects to it. The sentencing pattern today has been influenced by the fact that s 66A Crimes Act now has a maximum penalty of life imprisonment and the standard non-parole period is now 15 years. That that is not the maximum of 20 years that I apply here, nor is there a standard non-parole period.
The Court has to do its best with the tools it has been given.
Sentencing for stale crimes does call for a measure of understanding and flexibility: R v Todd [1982] 2 NSWLR 517 at [519]; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [14]. This is particularly so if, as appears here, the offender ceased offending without formal intervention. The delay gave him an opportunity to demonstrate a capacity for rehabilitation and he has demonstrated that capacity, making it less likely for the need to punish him to deter future offending by him: Kutchera v R [2007] NSWCCA 121; Wright v R [2008] NSWCCA 91.
On the other hand, delay in bringing the matter before the Court has operated to the offender's advantage. He escaped justice and his just deserts for decades, and until this matter came to light, he enjoyed a life free from the opprobrium or punishment his crimes deserved: Magnuson v R [2013] NSWCCA 50 at [62]; R v Cattell [2019] NSWCCA 297.
Not every question in sentencing proceedings involves a choice between extremes. Neither human behaviour nor the fixing of sentences is so simple. I have to take into account sentencing principles and, as has been often remarked, they point in different directions.
[9]
The case for the offender
The offender's subjective case reveals that he too was subject to child sexual abuse. When courts consider the impact on victims of crime, they often note the results of the Australian Federal Government, Royal Commission, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (December 2017) and the statute requires me to consider those studies.
It is accepted that child sexual abuse can have a significant detrimental impact on a person's mental health and relationships, particularly with trust and intimacy meaning they lack confidence in dealing with relationships and problems that arise in them. Those diverse impacts, like many sentencing principles, are interconnected in complex ways. It is difficult to isolate the specific impact, but they must be taken into account. Many survivors develop addictions, many take various paths to manage psychological trauma and abuse. This in turn affects their physical and mental health.
The offender's history is set out in the report of Dr Furst. It is not controversial. Although not supported by evidence on oath, is supported by not just the opinion of the doctor, but material he had access to.
The offender appears to have been exposed to alcohol abuse and domestic violence as a young child. He reports that he was abused by his father in a sexual way. After leaving school, he was able to work until his late forties. He had a work injury, he then retrained. He reports a heavy history of alcohol use from 2001 to 2015. He reports significant mental health issues, including admissions to psychiatric hospitals, and engagement in a mental health fellowship in 2014. He says that as a result of maturity and treatment he received he stopped drinking in 2015.
He has a number of health issues - with his heart, skin cancers and as a consequences of sporting injuries, including arthritis. While in custody he was exposed to what is called an 'ICD' which is the death of a fellow prisoner in the cell they shared.
He has a number of diagnosed mental health problems which Dr Furst believes have been exacerbated by his time in custody. They include low mood, anxiety, panic attacks, all of which are evident in his responses to proceedings today, which were interrupted so he could receive a medical check and have been interrupted by his clear distress at what is occurring during these proceedings. I do not believe that response was feigned, but the material before me indicates that he is prone to panic attacks. He also is diagnosed as having a Major Depressive Disorder.
Dr Furst explains how a history of abuse as a child impacts on person, and how these conditions impacted on him then and now. The report sets out matters that help me understand the trauma he suffered and the impact of sexual abuse on his emotional state. I do not ignore the impact of those matters on the offender. They did predispose him to committing the offences for sentence today. Sadly, as Dr Furst notes at page 9 of his report "there is … a strong correlation between boys who have been sexually abused … [then] becoming perpetrators".
Dr Furst makes recommendations for Ware's future treatment, including drug and alcohol and relapse prevention, and engagement in the EQUIPS (Addiction) program. Those programs can be continued in custody and on parole. So far as dealing with his underlying mental health issues, Dr Furst notes, at page 11, that his time in custody has already led to a significant deterioration and has made him more vulnerable than he was when he went in. A copy of Dr Furst's report will go with the warrant.
His prospects for the future really depend on how he deals with his time in custody. His having stopped drinking, that will be a major factor. If he continues being abstinent, by the time he is released, Dr Furst believes the chance of relapse is unlikely.
[10]
Submissions
Mr Booker, for the offender, and Ms Bird, for the Director, put before me comprehensive written submissions. I have sought, and will seek in this decision, to address them. They have assisted in this decision.
Mr Booker asks that I not impose a sentence that "crushes" all hope and prospects for the future and that I recognise the unusually detrimental impact upon him of the time in imprisonment: R v Verdins [2007] VSCA 102 at [7].
[11]
Synthesis
I will, to the extent that I am able, take into account that the offender appears to be suffering more and is more vulnerable than a prisoner, who did not have his underlying conditions.
He also has ill health. And while ill health and ageing cannot prevent the imposition of an appropriate sentence, they are matters that have to be considered because his state of, both physical and mental, health means that he serves his time harder than the notional prisoner who does not have those conditions.
I accept, as Mr Booker submits, that the material about Ware's background and his mental health issues, mean that less weight may need to be given to general deterrence. Further I can, when formulating a sentence, take into account that his moral culpability and his moral compass were compromised by matters that occurred in his childhood - they require mitigation of sentence.
That does not mean that a sentence that reflects the seriousness of what he did should not be imposed, nor does it mean that I ignore principles relating to general deterrence. Everyone in the community has to understand the impact of offences such as this on children and that if they do offend, as this offender did, they can expect significant punishment.
There is some evidence of regret and insight which I will take into account. There was no expression of remorse as such. He is not to be punished for that, but I do not think he is capable of seeing beyond the impact of his behaviour and his imprisonment on himself.
He is on protection, but there is no evidence that special management area protection is more onerous than general discipline.
There will be here a finding of special circumstances; the longer he is supervised in the community the better.
There must be sentences indicated for each individual offence and there must be accumulation to reflect those individual offences and the time over which they occurred.
Special circumstances are required because of the negative impact imprisonment is having on him; impacts that are beyond the ordinary. He will need to be restored to the community. That restoration has to be done in a way that allows him to still have some hope for a future life after release.
I appreciate that the complainant in this matter may ask, "Why should someone who did what he did receive such leniency?" The answer is simply that we do not want offenders to give up all hope of life after release. If people give up all hope and resort to drugs or here, alcohol, there is a chance of reoffending, and the courts must, by the sentences they impose, not make matters worse. The offender has to be released to the community and he should do so in a way that can be supported.
I have tried to be as brief as I can, given the demonstrated condition of the offender. I trust I have addressed all relevant issues. Ultimately, I have to synthesise a number of competing features, give proper weight to the serious crimes that were committed, and impose a penalty that reflects all relevant matters.
[12]
Orders
The orders of the Court are, in relation to:
Sequence 1: Sexual intercourse with a child aged under ten, taking into account the two matters on the Form 1, I indicate a sentence of 6 years and 6 months' imprisonment.
In relation to Sequence 3: The aggravated indecent assault, I indicate a sentence of 9 months' imprisonment.
In relation to Sequence 7: The aggravated sexual intercourse with a child between ten and 14, I indicate a sentence of 2 years and 3 months' imprisonment.
There will be a total sentence in this matter of 8 years imprisonment. It will date from 26 June 2023. There will be a non-parole period of 5 years which will expire on 25 June 2028 on which date the offender will be eligible for release to parole. There will be a parole period of 3 years to commence on 26 June 2028 and expire on 25 June 2031.
[13]
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Decision last updated: 16 September 2024