R v Wilson

Count one

1. Harriett 's evidence was that when she was six and staying with her father, she went into his bed and slept between him and his then partner. During the night, she woke to find the offender touching her on the front of her vagina, inside her underpants. The defendant moved his hand up the "front bit and inside". She then rolled over: First interview, question and answer, 123 ‑ 125. It was clear from her evidence that he put his finger inside her vagina.

Count two

1. Soon after, he moved his hand, and she rolled over to face him. He then moved his hand, moved the side of his palm, in between her bottom. These actions left her confused, particularly as the offender acted, the next morning, like nothing had happened.

Count three

1. In 2014 or 2015, when Harriett was six or seven, she visited Wollongong. The family went to the beach. When she returned, she was told to shower and to wash her "front part" very well. Afterward, when she was with her father in the lounge room, she said, her brother was shooed away. The offender then had her lift her leg and rest her foot on his thigh. He took down her underwear and used his finger to touch the front of her vagina, moving his finger up and down. He then told her in an angry tone that she had not cleaned herself properly.

Count four

1. In 2019, when she was 10 or 11, after the offender had moved to Southern Wollongong, the complainant and the brother were sleeping over. She said she woke to find the offender moving the side of his palm between her bottom. He held it there inside her underwear for about two minutes.

Count five

1. On another occasion, when she was spending the night, she woke to find the offender moving the side of his palm in between her bottom cheeks. Her underwear had been pulled down. She said that similar conduct occurred on other occasions.

Objective seriousness

1. The objective seriousness of a particular offence must be determined in the light of the entirety of its facts and circumstances. In cases such as this, one fundamental premise governs assessment of objective seriousness - every act involving the sexual exploitation of a child is serious. It is well recognised that such offences can have a profound and deleterious effect upon the victims for many years thereafter, if not their whole lives: Commonwealth of Australia, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report, (2017) vol 3; Stanton v R [2021] NSWCCA 123.
2. There is an absolute prohibition on sexual activity with a child, that prohibition is intended to protect children from the potentially long‑term and serious physical and psychological harm taken to be caused by the premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56. The guidance offered by the maximum penalties makes that clear.
3. It follows that every act that involves the sexual interference with a child is serious and is treated seriously by the courts. In assessing objective seriousness of an individual offence, I must consider: 1. The acts done; 2. The character of the sexual assaults, by reference to the elements of the particular offence charged; 3. The degree in nature of the physical conduct; 4. The nature and extent of any penetration of the child, if any. Noting that there is no hierarchy of seriousness of the kinds of sexual intercourse: R v AJP [2004] NSWCCA 434; 5. The degree of physical harm done to the child (psychological harm, or some sort being presumed); 6. The time over which the acts occurred; 7. Where and how the offences came about; 8. Any other acts associated with the crime; 9. The age difference between the perpetrator and the child; 10. Any relationship between the perpetrator and the child; and 11. The age of the child relevant to the range encompassed by the offence.
4. Such assessments are critical components of the sentencing process. While there are no prescribed set of descriptors that must accompany such assessment, I trust that the matters critical of my assessment will be readily apparent from these remarks.
5. I've received written submissions from both Mr Fraser, for the offender, and Ms Hughes, solicitor advocate, for the Director of Public Prosecutions. Both helpfully set out relevant factors that need to be considered. There is little difference between them.
6. Mr Fraser, in his submissions, suggested where, on some notional range of objective seriousness, the offences might lie. The Crown adopted his assessment and for the purpose of these remarks, I will do so as well. It's acknowledged by everyone that they are a fair estimate of where they fell in the "range".

• Count one: below middle of the range, but not low range.
• Count two: below middle of range.
• Count three: around the middle of range.
• Count four: slightly below middle of range.
• Count five: slightly below middle of range.

1. In accepting submissions of the parties, I do note however, that the relevant factors which cause the matter to be more or less serious are, in my view, a more readily understandable gauge of seriousness than a label attempting to fix the matter on some notional range.

Count one

1. A six-year-old child, who should have been safe in her father's bed was, instead, dingily penetrated, if only for a brief period. This, and each offence, involved both a breach of trust of a child under their father's authority. I do not double count such factors. They overlap. Perhaps, the most critical way of determining the seriousness of the offence is by repeating that the offences were committed by the child's father.

Count two

1. That first act was compounded by further skin on skin contact and the fondling of the bottom.

Count three

1. The offender used the pretence of caring for his six or seven-year-old daughter's hygiene to touch her genitals and use an angry tone to her when neither action was justified.

Counts four and five

1. A father disturbed his eleven or twelve-year-old daughter's sleep by putting his hand inside her underwear and fondling her.
2. Using those earlier measures, each involved actions by a father to his daughter. The child was relatively young in the range for the prospective offences. She was vulnerable. She was in her home, in her bed, or her father's bed. She was in a place where she should have been safe and protected. Each, obviously, involved a gross breach of trust. Each left the child violated and confused. They were, on the facts at trial, not isolated incidents. They occurred in two periods over a number of years.
3. Each was very serious. However, both submissions accept many of the features which would further aggravate such offences were absent. None of the offences took a lengthy period. The actual sexual acts were not lengthy or prolonged. There was no evidence of any physical aggression, threats, pain, discomfort. There was no risk of disease or pregnancy. The sort of acts that often accompany penile‑vaginal penetration, which, for those reasons, is often regarded a much more serious incident of what is already a very serious offence.

Maximum penalty and standard non‑parole periods

1. Careful attention to the maximum penalty and the standard non‑parole period, where applicable, is required. Here, both provide penalty sentencing measures to be balanced with all other relevant factors. Content must be given to a standard non‑parole period, but I do note that s 61N(2) Crimes Act, now repealed, has a standard non‑parole period that has been described as "absurd", or "curious": BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151.
2. However, a differently constituted Court of Criminal Appeals has noted, "Nevertheless, an 8-year standard non‑parole period has been prescribed by the legislature and the courts must give effect to it": R v NJK [2011] NSWCCA 151 at [40].

Criminal record

1. The offender comes before the Court with a criminal record. The material before me contained an inadmissible record from the Children's Court. I have no regard to it: Dungay v R [2020] NSWCCA 209; s 15 Children (Criminal Proceedings) Act 1987 (NSW).
2. Wilson spent a short time in gaol last century. He has a number of matters on his record, but none approach the seriousness of the present matters. While he doesn't get the leniency often given to first offenders, his record is not significant. I do not regard it as an aggravating feature. I do note that in matters such as this, prior good character rarely attracts much leniency in any event.

Victim impact statement

1. There is victim impact statement before the Court. Victim impact statements attest to the personal harm suffered by the victim as a direct result of the offence. There are aspects of it, which are more personal to the victim's relationship with her brother, or lack of a relationship with her brother, and I do not take those matters into account. It is clear however, as she says, that there is considerable estrangement between herself, and her brother due to the fact she came forward and made this complaint.
2. She told me: "I will further have bad memories of what happened. Something I'm going to be forced to live with. I've done nothing wrong, but I'm forced to feel that I'm in the wrong for telling the truth. I'm depressed and try to hide it. I've pulled away from my friends and avoid doing anything outside of home unless it's going to school. I can't sleep properly, but I want to sleep all day. All I want is for all of this to be over and not to speak about the past anymore".
3. That statement serves the very practical purpose of drawing to the offender's, the court's, and the community's attention to the personal harm caused by offences of this type. It is recognised that such offences will have deleterious effects, and inevitably, give rise to some sort of psychological damage. Sadly, what is set out in the victim impact statement is an all-too-common response to offences of this nature.

The offender's subjective case

1. No evidence was called on sentence, but a report from Mr Brecht, was tendered to the Court. I also have the advantage of an earlier report for a totally unrelated matter, prepared by Dr Nielssen. Mr Brecht is a psychologist. Dr Nielssen is a forensic psychiatrist.
2. It is clear from the material before me that the offender, as is his right, denies these offences. He's entitled to maintain those denials, but I have to sentence him in accordance with the jury verdicts. His denials, and his going to trial means that, while not punished for exercising that right, he cannot get the benefit often given to offenders who display remorse, accept the responsibility, or plead guilty prior to trial.
3. The history set out in the reports of Mr Brecht and Dr Nielssen, is not controversial. Wilson was born in Australia to a family that originally came from Lebanon to escape the civil war. He describes a strict, but terrific family. They had a good, but hard life. He learnt positive attitudes, and he had a positive attitude to school. He left school in year ten and obtained an apprenticeship in the family business. He was able to maintain work until he received a head injury in 2012. Since then, he has been in receipt of a disability support pension although he has had some work and has some capacity to work.
4. The reports indicate, in particular Mr Brecht's indicates, there are two major incidents in his life. The first was a sexual assault when he was aged eight. The perpetrator was a family member. Wilson told his parents at the time. They were supportive, taking his allegation seriously, but the perpetrator was never brought to justice.
5. In 2012, he had acquired a serious brain injury. The fact that he had that brain injury and what the sequelae to it are not in dispute. The medical records available to the report writers indicate that it occurred following a fall from a ladder. Wilson now has a different memory of the event. But the material before me indicates that his memory was disturbed by it. It is clear however, that it had a significant impact on his cognitive function, the reason for the disability support pension. That impact continues until today.
6. Mr Brecht assessed his dynamic risk factors, according to an accepted scale. He noticed that Wilson has a large number of protective factors, which will reduce his risk of reoffending and that is despite his maintenance of a plea of not guilty and his protestation to innocence.
7. Mr Breck noted Post-Traumatic Stress Disorder symptoms, which he says are not uncommon and often result from sexual abuse as a child. He also noted the considerable stress that the offender is under because of being in prison and being separated from his family, including his partner and son.
8. He recommends that he be formally assessed and that his current cognitive capacity be assessed, and that Justice Health try and find out the extent of the impact of his acquired brain injury.
9. He noted that there had been some improvements since the assessments made by Dr Neilssen. Mr Brecht noted that Wilson will benefit from trauma‑focused cognitive therapy to deal with the problems of the earlier sexual abuse, and that in custody he should undertake, if at all possible, the Moderate Intensity Sex Offender's program. A copy of Mr Brecht 's report will be sent to Justice Health with the warrant.
10. Judges do not ignore the lived experience of gaol. While there is no evidence, direct evidence, as to the actual impact of the acquired brain injury on his custodial situation, it takes no great imagination to understand that a person, already anxious and nervous about being incarcerated in a violent environment, would fear further head injury. There is also evidence that his cognitive function and capacity is reduced making it even harder to serve his time in custody than prisoners who do not have that disability. I do not ignore it. There was no link found between his brain injury and his offending because he does not accept, he offended at all. But I do not ignore his underlying conditions. Post-Traumatic Stress Disorder and an acquired brain injury can impact on offending. Courts, as I do in this case, also recognise the traumatic impact of child sexual abuse on offenders and recognise that those impacts can continue throughout life. They will be taken into account when I formulate a sentence.
11. A submission was made that I apply the principles set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. The material before me does not allow for Wilson to be placed strictly within any of the categories set out. But that does not mean that I do not take into account his underlying conditions and the impact they will have on him for the future.
12. A judge doesn't have to compartmentalise every factor taken into account. I must try and synthesise all relevant factors and his Post‑traumatic Stress Disorder and his acquired brain injury and the impact on him will be taken into account.

Other cases

1. I've had regard to statistics provided and the guidance offered by the Court of Criminal Appeal in recent cases including Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 and R v DN [2023] NSWCCA 39. Many of the crimes that were reviewed in those cases involved physical aggression, threats. Very significant custodial sentences were generally imposed, or indicated, for offences involving penile penetration: TH at [50].
2. The authorities in guidance of the Court of Criminal Appeal speak with one voice on the need for sentences, particularly for sexual Intercourse with a child under 10, to give considerable weight to the principles relating to general and specific deterrence. Particularly, if they are committed by persons in a petition of trust and / or authority: JJ v R [2020] NSWCCA 165.
3. I must always consider the consistent application of principle. The guidance offered by appellate Courts and other decisions of this Court is always welcome. However, each case and each offender is an individual, and sentencing is a discretionary judgment. The mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in the past case, or cases: The Queen v Pham; (2015) 256 CLR 550 at [47]; [2015] HCA 39; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45.

Structure

1. I'm required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender's crimes: Mill v The Queen (1988) 166 CLR 59; [1998] HCA 70 at [62] to [63].
2. There will be considerable concurrence for Counts one and two, as the acts charged were part of a continuing event. But there were four separate incidents and there was a period of years between the first three and the last two offences.
3. While there is some accumulation the principle of totality requires some moderation. I cannot simply add one sentence on the other. The severity of a sentence increases the longer a person has to spend in custody. A sentence of 2 years will have a greater impact than 1 so far as impunity of effects is concerned: R v Clinch (1994) 72 A Crim R 301 at [306], approved in MAK v R [2006] NSWCCA 381.
4. The evidence before me provides a basis for finding special circumstances. He will need psychological treatment. His acquired brain injury, and its impact, must be taken into account. He will need help after serving a long sentence adjusting to normal community life. The sentence should not, by its length, break the processional contacts and prosocial support that he has. He will need to be monitored in the community and he may need sex offender treatment in the community.
5. In so finding, I am mindful of the requirement that the minimum period that he should be imprisoned must properly reflect the gravity of his offences and the punitive purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Synthesises

1. Sentence must be proportionate to the offence. Sentences must also give proper consideration to the case made for the offender.
2. When sentencing for crimes involving sexual interference with children, judges have an obligation to vindicate the dignity of the child victim, and by the length of the sentence imposed, to recognise the harm done to the child. There is also, understandably, a community expectation that sexual offences against children will be severely punished. A proper sentence marks the court's view of the seriousness of the crime and should let other wrongdoers know the retribution that will fall upon them if they commit similar offences.

Orders

1. I will be imposing an aggregate sentence. I'm required to indicate appropriate sentence for each offence, taking into account all the matters I've referred to, and where there is a standard non‑parole period mandated, I have to indicate it as well.

• Count one: I indicate a sentence of 7 years imprisonment, non‑parole period 4 years, 6 months.
• Count two: I indicate a sentence of 2 years, non‑parole period 1 year, 3 months.
• Count three: I indicate a sentence of 2 years and 6 months, non‑parole period 1 year, 7 months.
• Count four: I indicate a sentence of 2 years.
• Count five: I indicate a sentence of 2 years.

1. The aggregate sentence will be 9 years imprisonment. There'll be a non‑parole period of 5 years and 9 months, reflecting a finding of special circumstances. The sentence will commence on 19 February 2023. Wilson will be eligible for consideration for release onto parole by the State Parole Authority on 18 November 2028. The balance of the term of the aggregate sentence is 3 years and 3 months, which will commence on 19 November 2028 and expire on 18 February 2032.
2. Mr Wilson, as a consequence of your conviction for the first count, you will be classified as a high-risk offender. What that means is that if, when you become eligible for release either to parole or at the expiry of your sentence, and it is felt that additional conditions or additional time in custody, has to be put on you, you are at risk of that occurring. You are advised to cooperate fully with the authorities because the more positive reports you get while you're in custody, the more likely it is that conditions will not be imposed upon you on your release. And that you will be released when you become eligible for release to parole on 18 November 2028.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2023