R v Fisher (1989) 40 A Crim R 442
Category: Sentence
Parties: Regina (Crown)
Source
Original judgment source is linked above.
Catchwords
R v Fisher (1989) 40 A Crim R 442
Category: Sentence
Parties: Regina (Crown)
Judgment (1 paragraphs)
[1]
Judgment
Mr Young, you appear for sentence today in relation to thirteen principal offences, six of which you committed in the period 1997 to 2002. They involve the first victim. The balance you committed in the period 2014 to 2017. They involve the second victim.
One of the offences is committing an act of indecency on a person under 10 years of age. This involves a contravention of s61O(2) of the Crimes Act. The maximum penalty for that offence is 7 years imprisonment. There is no standard non-parole period.
One of the offences is sexual intercourse with a person under 10 years of age. This involves a contravention of s66A of the Crimes Act. The maximum penalty for that offence is 20 years imprisonment. There is no standard non-parole period.
Four of the offences are sexual intercourse with a person between 10 and 16 years of age, whilst under authority. These involve contraventions of s66C(2) of the Crimes Act. The maximum penalty for each offence is 10 years imprisonment. There is no standard non-parole period.
Three of the offences are aggravated sexual assault with a person under 16 years of age. These involve contraventions of s61J of the Crimes Act. The maximum penalty for each offence is 20 years imprisonment. There is a standard non-parole period of 10 years imprisonment.
One of the offences is procuring a child under 14 years of age for unlawful sexual activity. This involves a contravention of s 66EB(2) of the Crimes Act. The maximum penalty for this offence is 15 years imprisonment. There is a standard non-parole period of 6 years imprisonment.
One of the offences is using a child under 14 years of age to make child abuse material. This involves a contravention of s91G(1)(a) of the Crimes Act. The maximum penalty for this offence is 14 years imprisonment. There is a standard non-parole period of 6 years imprisonment.
R v Young [2020] NSWDC 303 | Case summary | Zoe
One of the offences is indecent assault on a person under 16 years of age. This involves a contravention of s61M(2) of the Crimes Act. The maximum penalty for this offence is 10 years imprisonment. There is a standard non-parole period of 8 years imprisonment.
One of the offences is possessing child abuse material. This involves a contravention of s91H(2) of the Crimes Act. The maximum penalty for this offence is 10 years imprisonment. There is no standard non-parole period.
In addition to these 13 principal offences, you have asked me to take into account, in relation to one of the principal offences of aggravated sexual assault with a person under 16 years of age (sequence 5), five matters on a Form 1 which I have certified. Each of those five matters is a matter of indecent assault on a person under 16 years of age.
The facts surrounding your offending conduct are contained in a document entitled "Statement of Agreed Facts". For my purposes today, they may be re-stated as follows.
In 1997, you were in a de facto relationship with the first victim's mother (a lady whom you later married). The victim was then 7 years old.
Between 1997 and 2002 (when the first victim turned 13 years of age), you indecently and sexually assaulted the first victim on a weekly basis. The abuse included digital and penile penetration of her vagina.
The six principal offences concerning the first victim were not, therefore, isolated acts. You are not, however, to be punished for those uncharged acts.
The first principal offence involving the first victim (Count 1 / sequence 24 - committing an act of indecency with a person under 10 years of age) occurred at the beginning of 1997. As I have already said, she was 7 years of age at this time.
You entered the first victim's bedroom whilst she was there, and you pulled down your pants exposing your penis. You then told her that, if she had any questions about sex, she should go to you.
The first victim was scared and she started to cry. This child's tears did not deter you. You told her to grab your erect penis, which she did. She did not hold your penis for very long because her mother arrived home. You pulled up your pants and told the first victim not to tell anyone what had happened.
The second principal offence (Count 2 / sequence 18 - sexual intercourse with a person under 10 years of age) also occurred in 1997, and when the first victim was either 7 or 8 years of age.
The first victim walked into the bedroom which her mother shared with you. The first victim saw two of her siblings in bed with you - you were reading them a book.
The first victim got into the bed. She was lying across you and her siblings under the blanket.
You pulled down her pants and underpants slightly; and you also pulled your own pants and underpants down slightly.
You then started to touch the first victim on her vagina; then you grabbed your erect penis and moved it towards her upper thigh and vagina. Not only did your penis touch her vagina, it slightly penetrated it. The first victim then grabbed your penis and tried to move it away.
After you finished reading the book, the other siblings left the room.
You then told the first victim that you were going to tell her mother and blame all that happened on her - that is, the first victim.
The first victim was scared that she would get into trouble, and she asked you not to tell her mother.
The third principal offence (Count 3 / sequence 25 - sexual intercourse with a person between 10 and 16 years of age, whilst under authority) occurred in 1998 when, according to the agreed facts, the first victim was either 9 or 10 years of age. Given the elements of the charge, she must have been at least 10 years of age, and not possibly 9 years old.
On the relevant occasion, the first victim was asleep in the sunroom of the family house. She woke up to find that you had your hands under her shirt, and you were rubbing her breasts. You then put your hand into her shorts, and then you penetrated her vagina with your finger. This digital penetration lasted for about 10 minutes and caused the first victim pain.
I pause in setting out the facts surrounding the principal offences to record something which, in the agreed facts, is referred to as "general context". When the first victim was about 10 years of age, you told her that you had a video tape of her and one of her brothers which recorded them participating in sexual acts. You told the first victim that if she told anyone what you had been doing to her, you would show everybody that tape. Quite unhelpfully, the agreed facts do not expressly state whether or not this, at first blush, improbable assertion by you was true. Its immediate significance is that, as with the second offence, you were prepared to use emotional blackmail, as well as physical coercion and abuse of your position of trust, to obtain satisfaction of your depraved lust for this child.
The fourth principal offence (Count 4 / sequence 27 - the same offence as for sequence 25) occurred in 2002 when the first victim was either 12 or 13 years of age. You and she were both at home, and you digitally penetrated her with your "fingers" - whether this was intended to indicate the sequential use of different individual fingers or the simultaneous use of more than one finger was not made clear in the agreed facts. I shall give you the benefit of the doubt and assume it was the former. As you were doing this to her, she was repeatedly telling you to stop and she was crying. This child's tears again did not deter you.
The fifth principal offence (Count 5 / sequence 29 - the same offence as for sequence 25) also occurred when the first victim was 12 or 13 years of age. The first victim's mother was away from the family home attending a sporting event. You told the first victim to sleep in your bed. She complied with your direction and got into the bed and then pretended to be asleep. You got into the bed next to her and pulled her underwear down. You "jabbed" her with your erect penis. And then you inserted your penis into her vagina for a short time. You eventually stopped and went to sleep.
The sixth and final principal offence (Count 6 / sequence 26 - the same offence as for sequence 25) occurred when the first victim was 13 years of age. You and the first victim were swimming in the local public pool, even though it apparently was closed at the time. You and the first victim were "mucking around" in the pool and she had her arms around your neck and her legs around your waist. You moved her bikini bottom to the side and inserted your penis into her vagina. This went on for about 5 minutes and caused the first victim pain. The first victim called out to her mother who, it would seem, was nearby but, of course, was unaware of what you were doing. Following this intercourse, her vagina was sore and uncomfortable.
I pause to observe that the agreed statement of facts do not state whether, on the occasions you had penile-vaginal intercourse with the first victim, you wore a condom or ejaculated - and if so in the latter circumstance, whether or not in the first victim's vagina. The circumstances in which you had penile-vaginal intercourse with the first victim at that local pool are such that the only rational inference in the circumstances is that you were not wearing a condom. However, I am not able to come to the same conclusion in relation to the other instances of penile-vaginal intercourse. And on the one occasion where you did engage in penile-vaginal intercourse without a condom I cannot be satisfied, beyond reasonable doubt, that, on that occasion, you ejaculated - and whether or not in the first victim's vagina. However, that act of intercourse itself carried with it the real risk of pregnancy (a female child as young as 10 years can become pregnant) and / or the transmission of sexual disease.
In 2006, i.e. about 4 years after the sixth principal offence, the first victim disclosed to some family members that you had been sexually abusing her. The police were quickly involved, and the first victim provided the police with a detailed statement.
On 13 July 2006, the first victim's mother confronted you about the first victim's allegations - it would seem the first victim had not disclosed your criminal misconduct to her mother when she made the earlier mentioned revelation.
Shortly after this, you drove to a mineshaft near the rural township in which the family was then living. Later that evening, you were found at the bottom of the mineshaft suffering from critical injuries, as a consequence of which you were left a paraplegic. Although there was no other evidence about how this incident came about, I am prepared to assume that this was an attempt at suicide. However, I am not satisfied, on the balance of probabilities, that it was an act done out of remorse for what you had done to the first victim - as opposed to the humiliation of being discovered and / or fear of imprisonment.
The first victim, at that time, believed that you had suffered enough because of those injuries. She also believed that, as you were paralysed from the waist down, you would not offend again. Consequently, she told the investigating police that she did not wish to pursue the matter further and - it would seem - the matter was regrettably "dropped" by the police.
The first victim's assumption, that your paraplegia would prevent you from further sexually offending, was sadly mistaken.
About eight years after you were rendered a paraplegic, you initially met the second victim and then her mother. At the time, the second victim was 8 years old and you were 51 years old.
You met the second victim when she was on her way to a park near her house. You, apparently, were in the vicinity and you had a dog. The second victim stopped to speak to you because you had that dog. She was not to know how her life would be so deeply traumatised as a result of that innocent gesture.
Following this first encounter, you and the second victim got to know each other better. This involved you regularly buying her gifts, driving her to and from school, and she would often stay at your house without the supervision of her mother.
On 28 September 2017, police received information (from a source not revealed in the agreed facts) that the relationship between you and the second victim was "inappropriate". The police then spoke to the second victim's mother.
On 3 October 2017, the police attended your residential premises and spoke to you. You were told to ensure that your relationship with the second victim was "appropriate", and that you should not be putting yourself in a compromising situation. You agreed to this and told the police you would be "more careful". Far from being "more careful", you set out on a path of sinister sexual exploitation of that child - as I shall soon describe.
In less than one month after the police spoke to you about the second victim, and, specifically, on 31 October 2017, as the second victim was approaching her twelfth birthday, she "self-harmed" (which I understand to be a euphemism for attempted suicide) and was taken to hospital.
When interviewed by the police, she told them that she had done that to herself because of online bullying.
The police then seized and examined her electronic devices which contained ongoing communications with you.
The police also located several chat conversations between the second victim and "other" online identities (which were later revealed to be you), where it was clear the second victim was being sexually groomed by you using those false identities.
On 4 November 2017, the second victim attended a police station and provided a formal statement. In the statement, she said that she visited you everyday and spent time with you in your residential premises with just the two of you present. She revealed that you regularly bought her gifts and communicated with her via mobile phone and social media. She also disclosed that, on occasions, you would hug her.
On 9 November 2017, the police executed a search warrant at your premises.
During that search, they seized an iPhone, a Samsung tablet, a personal computer, and many electronic storage devices. In addition, they found a video on your phone of you and the second victim in your bed. Both you and the second victim were covered by a blanket.
A second search was conducted at your premises on 13 January 2018, and further devices were seized which contained child abuse material. These devices linked you to the false identities used to cause the second victim to send online child abuse material to you without her realising that you were the recipient.
You were arrested and charged on that day, 13 January 2018.
On the same day, the second victim participated in a second formal interview with police. In this interview, she said that she would often visit you and stay overnight at your house. She told police that you and she would often watch movies while lying on the bed in your bedroom. She said, at that time, she sometimes slept in the guest room and sometimes in your bed with you. During this interview, she again did not disclose any sexual abuse.
On 26 June 2018, the second victim participated in a third formal interview with police. She confirmed that she stayed at your residence on multiple occasions. Again, she did not disclose any sexual abuse.
In this third interview, she also talked about conversations that she had with an online identity sometimes known as "A Llad" and sometimes as "B Llad". At the time of this third interview, the second victim believed that that online identity was a real person. As I have earlier said, "he" was not real - it was you.
With this background, I shall now turn to the facts of the seven principal offences concerning the second victim and the matters on the Form 1.
On 11 January 2018, the police conducted an analysis of your personal desktop computer. They found many thumbnail images consisting of child abuse material.
The second victim was identified in many of those images - as was another very young (but otherwise unidentified) female child.
The background setting for those images were your premises.
Numerous photographs and videos taken by you depicted the second victim in various stages of undress and showed her chest, vagina, buttocks and anus.
There were also images depicting you committing sexual and indecent offences on the second victim when she appeared to be asleep. I shall refer to the specifics of these assaults later in these remarks.
Some of the photographs were of your exposed penis - and your catheter could be seen in those photographs. Some of the photographs depict you holding the second victim's hand next to your exposed penis.
Some photos taken in your bedroom were of the unknown very young female child to whom I have already referred. Her legs were spread apart, her underpants pulled to the side, and her vagina exposed.
The precise date on which these various photographs were taken could not be determined. However, the overall date range of them was between 1 January 2014 and 9 November 2017.
Additionally, the police found three photographs dated 8 January, 12 January and 1 April 2015. These photographs were taken on occasions the second victim was using the toilet, and captured on the photographs were the second victim's chest, vagina and bottom.
It is these facts (but not the sexual and indecent assault matters) which collectively constitute the first principal offence involving the second victim - using a child under 14 to make child abuse material (sequence 12).
When the police further examined the child abuse material involving the second victim, the following principal offences and matters were identified in the relevant photographs and video footage.
I pause to observe that, in a number of photographs, the second victim appears to be asleep. If she were, the victim impact statement which she has provided reveals that she is now aware that you had sexually abused her.
A group of four images showed you removing, or moving, the second victim's clothing so as to expose her vagina while she was sleeping. This is one of five matters of indecent assault (sequence 6) which is to be taken into account with one of the principal offences of aggravated sexual assault (sequence 5). Because of the nature of that matter, it will result in a slight increase in the sentence for the principal offence.
Three images showed you using your right forefinger and thumb to spread the second victim's labia majora while she was asleep. This is one of the three principal offences of aggravated sexual assault (sequence 2).
Four images showed a closeup of the second victim's buttocks while she was lying on a bed and appearing to be asleep. Your hand was shown touching her buttocks while you were moving her pyjama bottoms away to expose her anus. In one of these images, the second victim was lying on her stomach with her pyjama bottoms on. The image also showed your left hand spreading out across her buttocks, touching her. Your middle finger was shown as being pressed down between her closed legs. This is a matter of indecent assault (sequence 7) which is the second matter to be taken into account in relation to sequence 5. Because of the nature of that matter, it will result in a slight increase in the sentence for the principal offence.
Two images depicted the second victim's face and upper body lying on a bed. Her eyes were closed, and she appeared to be asleep. In two images, you were seen lifting her singlet, while she was asleep, exposing her right breast. In two other images, the second victim was shown from her stomach to her head. Her eyes were closed. Her singlet had been lifted above her breasts, which were exposed. This is the third matter of indecent assault (sequence 8) to be taken into account in relation to sequence 5. (Because of the nature of that matter, it will result in a slight increase in the sentence for the principal offence).
One image showed a closeup of the second victim's buttocks. She was lying on her left side and her pants were being pulled down past the bottom of her buttocks. The image depicted your right hand and, in particular, your middle finger being inserted between the cheeks of the second victim's buttocks and into her anus. This is the second principal offence of aggravated sexual assault (sequence 4).
Another image was a closeup of the second victim's buttocks with her pants pulled down so as to expose her anus. The image depicted your right hand touching her buttocks and using your fingers to spread the skin, thereby exposing the anus. This is the fourth matter of indecent assault (sequence 9) to be taken into account in relation to sequence 5. Because of the nature of the matter, it will result in a slight increase in the sentence for the principal offence.
Another image was, again, a closeup of the second victim's buttocks with her pants pulled down exposing her anus. Your right hand was shown holding a fully peeled banana. The image showed you holding onto one end of the banana with the other end having been inserted into the second victim's anus. The agreed statement of facts do not reveal the degree to which that object had been inserted in the child's anus. This is the third principal offence of aggravated sexual assault (sequence 5), and it is in relation to this principal offence that the five matters of indecent assault on the Form 1 are to be taken into account.
Two images showed you from the waist down lying on your bed. You were wearing only your underwear and your shirt was pulled up exposing your stomach, and your catheter tube. The second victim was shown lying to your left side with her arms in the image. Her right hand was resting on the top of your penis. This is the fifth and final matter of indecent assault (sequence 10) which is to be taken into account in relation to sequence 5. Because of the nature of the matter, it will result in a meaningful increase in the sentence for the principal offence.
The police also found a video file. The video showed you lying on a bed next to the second victim. Although the video is of poor quality, the second victim appeared to be asleep. Your hands, however, were seen rubbing her vagina above her clothing. This is the principal offence of indecent assault on a person under 16 years of age (sequence 13).
The police also examined your Samsung tablet and your HP desktop computer.
On the first device, police found four images which constituted child abuse material - of those images, two included penile-vaginal penetration of a female child aged between 10 and 12 years. On the second device, police found over 500 videos, and over 2000 images, all of which constituted child abuse material. The material ranged from teenage girls in sexual poses to children under the age of 5 being sexually abused by adult men. Unhelpfully, the agreed statement of facts gives no more detail: for example, what proportion of the material involved posing and what proportion involved sexual abuse; or what range of activities were included in the uninformative expression "sexually abused". The possession of this child abuse material is the principal offence of possess child abuse material (sequence 14). This lack of detail means that it is very difficult for the Court to make an assessment of the objective seriousness of this offence for an offence of its kind. Necessarily, the assessment will need to be one which does not unfairly disadvantage you.
I shall now summarise the facts which constitute the remaining principal offence, that being, procuring a child under 14 years of age for unlawful sexual activity (sequence 11).
From the time you first met the second victim in about January 2014, when she was 8 years old and you were 51 years of age, up until 9 November 2017, when she was almost 12 years old and you were 55 years old, you regularly communicated with the second victim.
These communications included communicating face to face, by telephone, and via the internet. Analysis of the electronic device used by the second victim showed that she and you contacted each other on a very regular basis via a chat messaging service.
These conversations were non-sexual in nature - and it is clear from the context of the messages, that the second victim considered you to be a father figure - a role which, as I shall shortly describe, you reprehensibly abused.
However, analysis of your computer and her iPad showed that you had created false profiles names online to procure her for unlawful sexual activity. The second victim was not aware that you were using these profiles; in other words, she was not aware that, in communicating with these profiles, she was, in fact, communicating with you.
You used two profile names: "Christopher", and "A Llad" and / or "B Llad".
I shall first deal with "Christopher".
When the police examined your computer, amongst other things, they found a photograph sent by the second victim to "Christopher" on 8 August 2016. The second victim was 10 years old at the time. The photograph was of a vagina. The agreed facts do not state whether it was the second victim's vagina.
Your computer also contained numerous text messages passing between "Christopher" and the second victim.
In these messages, "Christopher" repeatedly asked the second victim to send sexually explicit images and videos of herself to him - which she did. She also sent facial images of herself, as well as images showing her vagina and her breasts - which "Christopher" had specifically asked for.
During these chats with "Christopher", the second victim told him she was in Year 5, and "Christopher" told her he was in Year 6 and that he lived in Villawood.
"Christopher" sent images of an erect penis to the second victim together with a request to send more naked images of herself.
"Christopher" also made regular requests of a sexual nature to her, including discussing fellatio and instructing the second victim to insert a banana into her vagina.
The precise period of time in which the second victim communicated with "Christopher" and / or the number of sexually explicit communications - and how old she was when they started - is not revealed in the agreed statement of facts. However, the second victim was participating in such communications at least when she was 10 years old.
On 3 October 2017, when the second victim was 11 years old, she started to regularly communicate with an online identity known alternatively as "A-Llad" or "B-Llad". As I have already said, that identity was actually you. And 3 October 2017 was the very day police warned you about your contact with the second victim.
When the police examined the second victim's computer and your computer, 11 "chats" were revealed. The details of those chats are set out in the agreed facts.
For my purposes, it is sufficient to note that they were explicitly sexual in nature, and in which you persuaded the second victim to perform increasingly explicit sexual acts. You also would send sexually explicit material to her, not of you, but of a younger male.
These chats extended from 11 October 2017 to 31 October 2017.
In these chats, you encouraged the second victim "to have sex with other younger males that she knew".
The eighth chat was on 27 October 2017. During this chat, things took a very nasty turn for the worst.
"B Llad" said he had a nephew named "Christopher" who lived in Fairfield, and that he had given "Christopher" a copy of the naked videos of the second victim. Whether the second victim thought this was the same "Christopher" with whom she had been earlier communicating with is not made clear in the agreed facts.
"B Llad" also said that he and "Christopher" knew the second victim's friend in the wheelchair (meaning you), and that "Christopher" wanted more naked videos of the second victim, otherwise he ("Christopher") would show the friend in the wheelchair (you) the videos she had already sent.
On 28 October 2017, "B Llad" told the second victim that if she did not send more images and videos, he would show "everyone" the images and videos he already had. Disturbingly, the second victim replied, asking "B Llad" why he was doing this to her, and then she sent a message in which said, "I'm going to kill myself". She refused to send more videos and said she had a knife in her hand.
"B Llad" replied to this disturbing statement saying that he had the phone number for the man in the wheelchair, and that he ("B Llad") would make the man in the wheelchair pay money if the second victim did not send another video. "B Llad" demanded another video.
The second victim eventually gave in and said she would make one more. "B Llad" told her to send one of her vagina - "finger in". At 8:19pm, on 28 October 2017, the second victim sent you a video file of herself with a message saying, "bye bye see you in hell". A few minutes later, she sent you another message: "I keep trying to kill myself because of u".
On 30 October 2017, at 4:25pm, "B Llad" sent a message to the second victim inferring that he had rung her friend (you) and, if she blocked "B Llad", he would send certain pictures to her friend - i.e. you. "B Llad" then sent a further video and some image files to the second victim, which were images she had sent him, with threats that he would send these to other people, including to her mother.
At 4:28pm, "B Llad" sent a message directing the second victim to send a new video to him in which the second victim had inserted a banana or a hairbrush in her anus and vagina - together with a threat that, if she didn't comply, "B Llad" would send pictures he already had of her to other people.
At the time you were posing as "B Llad" and sending that message, you were also communicating with the second victim on your legitimate Facebook account. She had given you some information about the threats made by "B Llad". You were sending her Facebook messages on this legitimate Facebook account, appearing to support her, and telling her not to meet "Christopher".
At 9:00pm, "B Llad" sent a message to the second victim, in effect, telling her that, on the upcoming weekend, she would be required to perform sexual acts on "B Llad" and another adult male.
The second victim sent a copy of this message to you on your legitimate Facebook account because she was worried about it, and because it seemed that "B Llad" did know you.
On 31 October 2017, at 2:00am, "B Llad" finished his "chat" with the second victim, telling her he was going to send the images to her friend - i.e. you.
At 6:00pm, on 31 October 2017, the second victim attempted suicide at her home. She was taken to hospital. As I have said earlier, she told police she was trying to kill herself from online bullying - clearly, she was too ashamed to tell them the truth.
On 13 January 2018, the police obtained another search warrant to search your premises at Canley Vale and, at about that time, you were arrested.
You have been in custody continuously from that date solely referrable to these matters.
It is necessary for me to set out the objective seriousness of each principal offence for an offence of its kind.
In relation to the first victim:
1. sequence 24 is slightly below the middle of the range;
2. sequence 18 is slightly above the middle of the range;
3. sequence 25 is at the mid-range;
4. sequence 27 is at the mid-range;
5. sequence 29 is slightly above the mid-range; and
6. sequence 26 is slightly above the mid-range.
Sequences 24 and 18 are additionally aggravated by your abuse of your position of trust and authority in relation to the first victim. Moreover, all sequences, except sequence 26, are additionally aggravated by the fact that they occurred in the first victim's home.
In relation to the second victim:
1. sequence 12 is at the mid-range for an offence of its kind;
2. sequence 2 is below the mid-range;
3. sequence 4 is at the mid-range;
4. sequence 5 is above the mid-range;
5. sequence 13 is below mid-range but not at the bottom of the range;
6. sequence 14 is at the middle of the range; and
7. sequence 11 is above the mid-range and into the upper-range.
Quite extraordinarily, only the most minimalistic evidence about your subjective circumstances has been placed before the Court.
Apart from the bare facts of your age (you are now 58 years old), that you have no formally recorded prior convictions, that you are a paraplegic, and the impact that that circumstance has upon you as a prisoner, I know nothing about your background.
You were represented by experienced and very competent counsel and solicitors for the sentence hearing. The absence of any other subjective material must have been on your instructions. The only rational inference is that any other available subjective material would not have assisted you.
But I do know that you are a cruel, cunning, determined, and depraved sexual predator.
There has been no expression of remorse for what you have done to these children. Nor have you expressed any intention to seek any rehabilitative treatment.
On the material before me, your prospects for rehabilitation are, at best, poor.
Clearly, general and specific deterrence are fully engaged - as is the need to protect the community from you and your offending behaviour. Your rehabilitation is, in the circumstances, of reduced significance.
In this context, the observations of the Court of Criminal Appeal in R v BJW [2000] NSWCCA 60 (Sheller JA, James and Dowd JJ) at [20] per Sheller JA are to borne in mind:
"...The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim..."
The dicta of the Court of Criminal Appeal in R v Fisher (1989) 40 A Crim R 442 at 445 (per Yeldham J with whom Maxwell J agreed) is also to be noted:
"This Court has said time and time again that sexual assault upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to jail for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations…
"This Court must serve notice upon Judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the Court's are to play their proper role in protecting young people from sexual attacks from adults…"
Because of the objective seriousness of your offending, I decline to make a finding of special circumstances, notwithstanding that this is your first time in prison, and notwithstanding your paraplegia and the matters contained in Exhibits 1 and 2 - together with the affidavits made by you and Ms Fisher.
No sentence other than full time imprisonment is appropriate for any of the individual offences.
You entered late pleas in relation to the first victim and, as a result, you will receive an effective discount of 15 per cent for the utilitarian value of those late pleas. You did, however, enter early pleas in relation to the second victim and will, therefore, receive an effective discount of 25 per cent for the utilitarian value of those pleas.
I intend imposing an aggregate sentence.
And in relation to that aggregate sentence, I have taken totality into account. I have also specifically taken into account the submissions made on your behalf that "… there is a serious risk that imprisonment will have a gravely adverse affect upon…" your health; and that "… this is a matter where each year of a sentence of imprisonment may represent a substantial proportion of…" your remaining life. In fact, I am quite conscious of the fact that you may not live to complete the sentence I am going to impose.
It is necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence. The discounts of 15 and 25 per cent for the pleas of guilty will be applied to the indicative sentences.
However, it would be totally unrealistic, in assessing the totality of your offending conduct in relation to either victim, to look at any one of the various offences in isolation. Each was but one part of a prolonged and extremely damaging course of conduct in which you inflicted your perverse lust on these vulnerable children. Looked at in totality, your criminality was of a very serious kind.
In relation to the first victim, the indicative sentence for:
1. sequence 24 is 3 years before the discount, and 2 years 6 months after the discount;
2. sequence 18 is 9 years 6 months before the discount, and 8 years after the discount;
3. sequence 25 is 7 years before the discount, and 5 years 11 months after the discount;
4. sequence 27 is 8 years before the discount, and 5 years 11 months after the discount;
5. sequence 29 is 9 years 6 months before the discount, and 8 years after the discount; and
6. sequence 26 is 10 years before the discount, and 8 years 6 months after the discount.
In relation to the second victim, the indicative sentence for:
1. sequence 12 is 7 years before the discount, and 5 years 3 months after the discount - the indicative non-parole period is 3 years 11 months;
2. sequence 2 is 3 years before the discount, and 2 years 3 months after the discount - the indicative non-parole period is 1 year 8 months;
3. sequence 4 is 7 years before the discount, and 5 years 3 months after the discount - the indicative non-parole period is 3 years 11 months;
4. sequence 5, and taking into account the matters on the Form 1, is 10 years before the discount, and 7 years 6 months after the discount - the indicative non-parole period is 5 years 7 months;
5. sequence 13 is 2 years before the discount, and 1 year 6 months after the discount - the indicative non-parole period is 1 year 1 month;
6. sequence 14 is 5 years before the discount, and 3 years 9 months after the discount - the indicative non-parole period is 2 years 9 months; and
7. sequence 11 is 10 years before the discount, and 7 years 6 months after the discount - the indicative non-parole period is 5 years 7 months.
Mr Young, of the 13 offences to which I have referred at the commencement of these remarks on sentence, I sentence you to an aggregate term of imprisonment of 20 years.
I fix a non-parole period of 15 years commencing 14 January 2018 and which will expire on 13 January 2033.
I fix a balance of 5 years commencing 14 January 2033 and which will expire on 13 January 2038.
I direct the Registrar to send an un-redacted copy of this Judgment and Crown Tender Bundle to the Director General of the Department of Family and Community Services for investigation concerning the 2nd victim and the knowledge and conduct of her mother.
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Decision last updated: 15 June 2020