R v Williams

Charge 12

1. The victim recalled that shortly before his 6th birthday (ie before May 1981), the offender took the victim, with the victim's two sisters, to Blacksmiths' Beach. This was during summer time. The victim recalled being at the beach for many hours during the day through to the afternoon. The victim recalled asking to go to the bathroom and that the Offender insisted on accompanying the victim. This was around 4pm.
2. The victim recalled getting undressed and that the offender got undressed. This was in the shower cubicle which, the victim later accepted in cross-examination, was visible to people within the toilet block.
3. The victim recalled the offender masturbating himself for about 10 minutes before ejaculating on to the victim's face and chest.

Charges 13 - 16 (incl)

1. On the victim's 7th birthday (May 1982), the offender took the victim out. The offender took the victim to Red Rooster or KFC (the victim recalled that it was a chicken shop) and thereafter to Timezone.
2. After this, the offender took the victim back to the caravan park in which the victim lived but, whilst on route, drove the vehicle off onto a dirt track in a little brown car that the offender was driving.
3. When the vehicle was deep in the bush, the offender used his hand to rub the victim's leg and thigh (charge 13). The offender pulled out the victim's penis and began to lick and kiss it (charge 14).
4. The offender told the victim to get out of the car. The victim walked to the front of the car. The offender asked him to get on the bonnet. By this stage both the victim and the offender had their pants down. The offender inserted his penis into the victim's anus and thereafter moved his penis in and out for a couple of minutes (this was charge 15). The victim recalled that this caused excruciating pain. This episode featured the first time that penetrative sex had occurred.
5. The offender then pulled his penis out and ejaculated on the victim's back and buttocks (this related to charge 16). The offender retrieved some nappy wipes before wiping the victim. They got dressed and returned to the car. The victim recalled the offender asking "Did you enjoy that?" or "Was that good?."
6. Later that day, the victim noticed pain in his stomach and observed blood in his underpants. The victim referred to pain to the victim's grandmother the next day but according to the victim, was told to take some tablets for constipation.
7. The Crown emphasised that at the time of the offending, the victim was only 6 or 7 years of age. Age, or an age range, was not an element of the offence, so there is no impediment to having regard to it when assessing the seriousness of the offending. The Crown assessed the offending, in each instance, as just above the mid-range of offending, and Counsel for the accused adopts that categorisation. So do I.

Aggravating factors

1. The Crown asserted two statutory aggravating factors. The first was that the offender was in a position of authority over the victim. Emphasis was placed here on the offender being a close friend of the victim's father as well as being a family friend of the victim's foster father. The Crown says that the offender had been entrusted with the victim's care. The Accused accepts that, to a minor degree, there was an 'atmosphere' of a position of authority.
2. The second factor was that the victim was 'vulnerable,' with reference to and the circumstance of the victim being placed in foster care. The Accused did not contest this factor and I accept its application.

Victim impact statement

1. Handwritten and typed versions of a victim impact statement were supplied to the Court. The victim spoke movingly of how the victim's normal childhood, teenage years and development through adulthood (the victim now being aged 48) had been "destroyed" and the feelings of panic, guilt and humiliation that the victim still endures. Like many victims of child sexual abuse, the victim partly blamed herself. Whilst understandable, that is most unmerited.
2. Properly, in my view, the Crown did not suggest that the special aggravating factor of harm to the victim is engaged. Nevertheless, there are multiple statements in the authorities (including R v Gavel [2014] NSWCCA 56 - which authority the Accused's Counsel also cited in her written submissions) indicating that it is virtually presumed that harm to a child victim of sexual abuse is likely to be enduring. A sentence that recognises harm done the victim (and community) is an important sentencing consideration in this type of case (Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act'), s 3A(g)).

The offender's age and background

1. The offender was aged between 31 and 32 at the time of the offending. He is now over 73 years of age; a circumstance emphasised in his Counsel's submissions.
2. The circumstance that an offender is elderly does not point in a singular direction. The nature of the offending was such that it might naturally lead the victim to be reluctant to report the offending (a circumstance touched upon by the victim in her victim impact statement) and in that respect, the potential exposure of an offender to spending his later years in jail is a detriment that the offender has brought on himself. But, with advancing age comes a likely diminution in health conditions. It may be something of a moot point whether the diminution in this offender's health has been accelerated by the processes of criminal justice (including pre-trial custody and entry into custody after convictions) brought to bear against him or would have been a result of the ageing process; since, for reasons later remarked upon, I accept that his physical and mental condition will make his term in jail more onerous than it would otherwise have been. Ailments such as gout and arthritis are common incidents of old age, so their presence should not weigh in an offender's favour in an exaggerated way. On balance, I accept that the elderly age of the offender is a factor, albeit a minor factor, in reducing the salience of general deterrence.
3. A description of the offender's background appears in the principal report of Sam Borenstein, a clinical psychologist, dated 8 December 2023. That report features, amongst other things, a history of the offender's background. The offender gave unchallenged evidence that what he told Mr Bernstein was truthful.
4. The offender was one of three brothers. His eldest brother died in 2018 and his younger brother, who is now 70, suffers from paranoid schizophrenia. The offender reported incidents associated with domestic abuse, coming from both parents. The account that he gave of his school history suggested that his period there was brief and somewhat deprived: he claimed his parents did not allow him to play sport and had a very small circle of friends. He said he was bullied.
5. After he left school, he worked in various capacities.
6. The offender asserted that he had been sexually abused on occasions when he was aged 8, 12 and 14 and he gave his psychologist details of those incidents. Apparently, the offender had not disclosed these episodes to anyone previously.
7. In his Counsel's written submissions, it appeared to me to be suggested (paragraph 12) that the sexual abuse which was perpetrated upon the offender played some role in his perpetrating the sexual abuse against the victim. I have difficulty accepting that submission. First, the point jars against the offender's continued assertion of innocence. In the second place, he denied any abnormality and said he had enjoyed a "healthy" sex life with his now former wife. Thirdly, and related to the second reason, Mr Borenstein did not himself explore this connection. Fourthly, whilst it is true that the experience of this Court has sometimes shown that the perpetrators of child sexual abuse have themselves been abused, to suggest the existence of any general trend in the absence of further evidence would do a disservice to victims of such abuse who have struggled with the effects of their abuse but have continued to live decent lives without engaging in conduct of this kind themselves. It is a form of probabilistic determinism.
8. The offender's counsel also highlighted the psychologist's opinions about the offender's childhood being marked by material and emotional poverty and bullying at school. But the psychologist stopped short of attributing the offending to these aspects of his upbringing.
9. I do not discern any material diminution in the offender's culpability by reason of the matters his counsel has referred to.
10. He had several relationships before marrying at a young age (22). He is no longer married. He has five sons.

Remorse

1. According to his psychologist, the offender continues to deny his guilt (and has indicated his intention to appeal), which is his right. The absence of remorse does not aggravate the offending but, by the same token, deprives him of a feature which, if it existed, would have been a mitigating factor.

Antecedents

1. Although the offender has a criminal history, the offences are very old and unrelated to the index offending. The Crown, quite properly, took no point about them.

Prior good character

1. The offender tendered a written reference from his son, Mr Wasiak. The offender's son spoke of his father as being a good family man and indicated his continued personal support of his father; whilst acknowledging the seriousness of the offences for which his father is to be sentenced.
2. The Crown does not suggest that the offending occurred because he used his good character (or absence of convictions). Thus there is no impediment to me giving some weight to these circumstances. Nevertheless little weight should be accorded to them for offences of the present kind.

Rehabilitation prospects and the likelihood of re-offending

1. The absence of a guilty plea and the absence of remorse are not to be treated as aggravating factors. For offences of the present kind, their absence might make it difficult to find that there is no need for specific deterrence or good prospects of rehabilitation (or an unlikelihood of reoffending).
2. Mr Borenstein administered Static-99R testing and indicated that the results suggested the offender presented as a 'low average' risk of reoffending. The psychologist opined that that the offender did not present as a threat to the community.
3. By dint of the offender's age and physical and mental infirmities, I accept those opinions.
4. I note, further, that Mr Wasiak has expressed his support for his father in terms of future support when released from custody.

Hardship

1. There were different aspects of hardship that the Accused emphasised.
2. In the psychologist, Mr Borenstein's report, reference was made to the offender's assertions regarding the onerous aspects of his incarceration. He is in fear of being identified as a child molester. The offender spoke to his fear as being identified for the nature of his offending and the threats he apprehends. I accept that this is a basis for finding that conditions in incarceration will be more onerous to him (R v Totten [2003] NSWCCA 207).
3. According to Mr Borenstein's primary report, the appellant has spent long periods in quarantine because of restrictions arising from the Pandemic. The offender (and his son) each referred to additional hardship associated with the social distancing restrictions arising from management of the Pandemic in correctional centres.
4. The offender reported to Mr Borenstein that he had a range of ailments, including incontinence, gout and anxiety. He does not have proper eyeglasses and he experiences symptoms of depression. The psychologist opined that his health prognosis, in the short and long term, was extremely guarded.
5. The circumstances of the offender's health conditions, as conveyed to his psychologist, are supported by both a letter by the offender dated 20 September 2022 (which was relied upon to support a release application) and an affidavit that the offender prepared for the purposes of this sentencing hearing. In his evidence in chief, he affirmed the correctness of those documents. Supplementing that letter and affidavit are supporting health records which particularly indicate issues with his eyesight. In addition some of the ailments of which the offender complains (gout, arthritis, issues with his eyes and also high blood pressure) have arisen since he was in custody.
6. In Mr Borenstein's supplementary report (29 January 2024), the psychologist reported on the results of psychometric testing conducted (I infer on that date, despite the reference in the report). It commented upon extremely severe symptoms of depression, anxiety and distress. The psychologist diagnosed (with reference to DSM V) a severe Adjustment Disorder with Mixed and Depressed Mood.
7. This supplementary report has to be seen in a context that an offender, with a looming date for sentencing for serious offences, might be expected to have elevated anxiety, depression or stress. Be that as it may, I accept that the offender, of this age, with mental health issues and other ailments, will find continued incarceration to be harder than the general population of inmates.
8. The Crown relied upon a document amounting titled an Overview of Services issued by the state's Justice Health and Forensic Mental Health Network. The document, which is naturally generic, points out services to address inmates' mental health concerns and also the range of general healthcare services (including for chronic conditions). The Crown disclaimed any suggestion that he had not taken advantage of those services. The point of this was to indicate the availability of services in rebuttal of the concern that the offender might be deprived of assistance for his various health conditions.
9. Another aspect of hardship which was the subject of commentary by the offender's son in the son's letter of 1 February 2024, concerns his financially subsidising his father because of the latter's loss of income; and the offender's prospective risk of defaulting on a tenancy agreement. I do not place much weight on those incidents, which would be common to a person in this offender's position and circumstances. Neither the offender (nor his son) referred to his earning capacity prior to his arrest (in February 2022) which would permit the Court to fully assess the submission in any event.
10. Finally although it distresses the offender that he cannot see his mentally ill brother, I would not regard that as being a factor of significant weight. It is not suggested, directly that the offender has a caring role for the brother. Deprivation of family contact is a type of deprivation commonly felt by inmates even if it might be conceived that (generally) it might hit home harder to an aged inmate.

Instinctive synthesis

1. I take into account the maximum penalties for the offending. Given the nature and dates of the offending, this is an instance where s 25AA(3) of the CSP Act applies. I have regard to the approach outlined in R v Cattell [2019] NSWCCA 297 at [123]-[124]. I explicitly acknowledge that I have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).
2. The Crown indicated that the criminality in the present case would potentially be equivalent to what is now ss 61KD and 66C of the Crimes Act. The Accused agrees with that. An offence under s 61KD now carries a maximum penalty of 7 years' imprisonment (with a standard non-parole period of 5 years). An offence under s 61C(1) carried a maximum penalty of 12 years imprisonment.
3. I have taken into account the considerations in s 3A of the CSP Act (and have already acknowledged, indirectly, one of those considerations, being harm to the victim). It is well-established that for sexual offences of this kind, general deterrence, denunciation and retribution, and holding the offender accountable assume particular significance. Moreover, to elaborate on something that I said earlier, courts proceed on the hypothesis that sexual abuse of children inevitably gives rise to psychological damage in their victims and, as indicated it is important that the sentence acknowledge the harm to the victim. Given the circumstances, including his age and infirmity, specific deterrence, the need to protect the community and the rehabilitation of the offender are subordinate considerations.
4. I am satisfied that the s 5 threshold is crossed; a matter conceded by his Counsel.

Special circumstances?

1. As an effectively first time offender and with significant treatment needs, I make a finding of special circumstances.

Prior custody

1. At the date of sentencing, the offender has spent 255 days in custody; solely referable to the offending. I consider the sentence should be backdated to take that period into account

Indicative terms

1. These are: Count 12: 2 years and 3 months imprisonment Count 13: 2 years and 6 months imprisonment Count 14: 2 years and 8 months imprisonment Count 15: 4 years and 6 months imprisonment Count 16: 2 years' imprisonment

Totality

1. The Crown accepts that the offending the subject of counts 13-16 (inclusive) were broadly offending within a single criminal episode, against the same victim. This is a circumstance that points to substantial concurrency. Notwithstanding this, there were discrete acts amounting to offences giving rise to a need for some accumulation. The conduct the subject of count 12 was separate and occurred approximately a year apart. This is a matter pointing to some level of accumulation. The aggregate sentence is designed to reflect his criminality overall.

Sentencing

1. Mr Williams, please stand.
2. You are sentenced to a term of imprisonment for a term of 8 years and 3 months, commencing on 23 May 2023 and expiring on 22 August 2031, with a non-parole period of 5 years expiring on 22 May 2028; after which you will be eligible for release on parole.

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