Regina v DJH

Remarks on Sentence 1 On 14 October 2015 the offender pleaded guilty before a Magistrate to numerous child sexual assault offences. The matter involves seven different complainants and offences that spanned approximately twenty years. Pleas of guilty were adhered to in the District Court and, accordingly, the offender is entitled to the full 25% discount for the utilitarian pleas of guilty. 2 In respect of a number of the complainants there is a Form 1 document relating to other offending involving that same complainant. In dealing with the Form 1 matters I acknowledge that I will need to apply and give proper effect to the decision of the Court of Criminal Appeal in The Attorney General's Application Under section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 otherwise known as the Guideline Judgment on Form 1 matters. Given the nature of the offending to which the matters on the Form 1 documents relate is serious in itself, taken with the number of matters on the Form 1 documents, the matters on the Form 1 documents must have some meaningful impact on the sentence that is ultimately imposed. 3 A number of the offences on which I am passing sentence carry standard non-parole periods. I will set out the maximum penalties in respect of each offence when dealing individually with the seven victims. In the cases where a standard non-parole period is applicable I acknowledge that I am engaged in a one-step instinctive process where the principle guideposts are the maximum penalty and the standard non-parole period. 4 At the sentence hearing on 9 June 2016 I indicated to counsel that it was my intention to, at the conclusion of these remarks, invoke section 53A of the Crimes (Sentencing Procedure) Act, 1999 and impose an aggregate sentence. Although I will deal with the facts in respect of the victims in the order in which they appear on the papers, I will set out the indicative sentences (and also indicate the "starting point") in a table at the conclusion of these remarks shortly before setting out my formal orders. I will deal with the issue of the maximum penalty and if applicable the relevant standard non-parole period and I will make an assessment of the seriousness of the offence at the time of dealing with the facts. Given that some of the matters on which the offender appears for sentence carry a standard non-parole period, for the sake of consistency I will use the scale usually utilised in assessing the seriousness of matters that carry standard non-parole periods. 5 The relevant legislation requires that I make an order that none of the victims be identified and that no information tending to identify them be published. Given the familial relationship between many of the victims and the offender I direct that there be no publication of the name of the offender. I will refer to the victims generally by initials. This is not to depersonalise them but to ensure that they remain anonymous. Matter involving LF - H55495379 sequence 2 6 The one charge on H55495379 is one that avers an indecent assault between 10 July 1993 and 31 December 1993 at Dubbo on a child under 10 years of age. The victim LF was 7 years of age. There are no Form 1 matters in respect of this victim. The victim's father is an uncle of the offender, making the victim and the offender cousins. When the victim's parents separated, the offender and the victim's father shared a flat in Dubbo, which the victim visited on weekends. 7 The offending occurred on a weekend when the victim was visiting her father when she was seven years of age. The offender was alone in the flat with the victim. The offender showered and after doing so sat on a lounge chair behind her while she was playing with a super Nintendo. The offender said, "Come here and give me a hand job". The offender told her that her father would be angry if she did not comply. Believing this she complied, kneeling between the offender's knees and following instructions when he told her to "grab it [his penis] with your hand". She was guided by the offender, who was naked. The victim masturbated the offender for about five minutes while the offender had his eyes shut. She was crying throughout. The offender suddenly jumped off the chair and ran to his bedroom. The victim's aunty arrived at the house but she was afraid to complain. 8 The victim's contact with the offender lessened. In about 2002 she was living with her aunt Judy and the offender was also living at the same premises. She avoided being alone in his company. 9 LF was the first of the victims to complain. She told a friend at about the time of her sixteenth birthday that the offender had assaulted her when she was younger. In early 2014 LF made a formal statement to the police. A surveillance device warrant was issued on 6 June 2014 and LF assisted police in participating in an intercepted call. The offender made admissions, including, "I used to be a sick cunt and I wish, I'm not very proud of it and I wish I was never born….I used to wish I was dead actually…I tried a couple of times and I just can't understand why I did some fuckin' stupid thing like that in my entire life. Pathetic gross and I just honestly, you know, I wish I died. My sicker self when I was young…yeah it's not your fault". 10 The maximum penalty for the offence at the relevant time was ten years imprisonment. At the relevant time a standard non-parole period did not apply. The complainant was seven years of age. The offender was naked. The incident went on for some five minutes. The complainant was crying. The matter is a serious example of an indecent assault on a child under 10 which I would assess as being slightly above the mid-range of objective seriousness. Matter involving TB - H5506554 sequence 2 11 There is one offence involving the victim TB, namely an offence of sexual intercourse with a person between 10 and 16 years by a person in authority, contrary to s 66C(2) of the Crimes Act, 1900. The offence occurred between 23 January 1992 and 22 January 1994 at Dubbo. The victim was 10 or 11 years of age at the time. The maximum sentence applicable at the time of the offence was ten years imprisonment. There was no applicable standard non-parole period. 12 TB lived with her parents in Dubbo. The next door neighbour was the aunt and uncle of the victim LF referred to above within these remarks. The offender babysat TB and her sister. Just after Christmas when the victim was aged 10 or 11 she was at the offender's flat. She discovered that her pushbike had been stolen. She was unable to return to her home as her pushbike had been stolen. 13 Later in the evening the victim was lying on the bed in the offender's room wearing a nightdress and underwear. The offender entered the room and closed the door behind him. He had just come from having a shower and was dressed only in a towel. The offender approached the bed, leant over the complainant and spread her legs apart, and took the towel from around his waist. 14 The offender then placed his hand under the victim's nightdress and moved her underwear to one side. He put his penis into the victim's vagina. The victim said it felt hard and rough and it was painful. She told him to stop and to get off of her to which he replied that it would be right. The victim felt the offender trying to force his penis even further inside her vagina. A portion of her statement is extracted in the facts, namely, "The pain was unbearable. It was hurting and couldn't go all the way into my vagina. I began to cry. It was like he didn't care. It felt like this went on for about ten minutes. When I got the chance I got up off the bed away from D [the offender]…I was still crying. I can remember seeing blood around my vagina and underwear". 15 The victim was 10 or 11 years of age and accordingly very much towards the lower age limit of the charge. There was some degree of force. The intercourse was penile/vaginal, was understandably very painful and continued for some time. There was bleeding. In these circumstances the offence is a particularly serious example of the offence and towards the upper end of the range of seriousness. Lack of consent is not an element of the offence. 16 The victim also gave an account of the offender placing a rubber band type object around his genitals, grabbing a large knife from a drawer, placing his penis on to the bench and saying "Cut it". The victim said no; she took the knife for a short period of time but declined to cut the offender. She saw the offender using the knife in a cutting motion but did not recall seeing blood. 17 The offender attempted from August 2013 to February 2014 to contact the victim via Facebook but she did not reply. In February or March 2014 the victim became aware of the police investigation and told a friend and then her mother of what had occurred. A formal statement to police was made in March 2014. Matters involving MH - H55898653 18 MH is a nephew of the offender. The agreed facts recite that MH was indecently and sexually assaulted by the offender on numerous occasions from the age of five until about twelve or thirteen years of age. The offender appears for sentence in respect of two charges of sexual intercourse with a person under 10 contrary to s 66A of the Crimes Act (sequences 2 and 8), one count of sexual intercourse with a person between 10 and 14 contrary to s 66C(1) of the Crimes Act (sequence 7) and one count of indecent assault on a person under 10 years contrary to s 61M(2) of the Crimes Act (sequence 1). In addition there are two charges of sexual intercourse with a person under 10 (sequences 4 and 5) and a count of sexual intercourse with a person between 10 and 4 years (sequence 6) on a Form 1 document to be taken into account. 19 The maximum penalty for the offences of sexual intercourse with a person under 10 was 20 years imprisonment. The maximum penalty for the offence of sexual intercourse with a person between 10 and 14 was 16 years imprisonment. The maximum penalty for the aggravated indecent assault contrary to s 61M(2) of the Crimes Act was ten years imprisonment. None of the matters involving the complainant MH carry a standard non-parole period. 20 The agreed facts detail what are described at the "First Charged Episode", "Second Charged Episode" and "Third Charged Episode". Going to the first episode the facts recite that the offender first assaulted the complainant MH when the complainant was five years of age in the period May to July 1997 at Stockton near Newcastle. The complainant was with the offender in the offender's bedroom. The offender called the complainant to over to the bed. The complainant, who had been playing a video game, turned around to see the offender's shorts and underpants pulled down exposing his (the offender's) erect penis. The complainant complied when the offender said "Come here". The offender took the complainant's hand and placed it over his erect penis moving the complainant's hand up and down his penis for a few minutes before removing his hand so that the complainant was masturbating him unassisted. This is the conduct which relates to Sequence 1, which is a count of aggravated indecent assault contrary to s 61M(2) of the Crimes Act. Given the conduct and the complainant's age, I assess this matter as being slightly above mid-range. 21 After this the offender grabbed the complainant around the back of his head forcing the complainant's head to the offender's groin and said, "Suck on it". The offender held his penis upright as it went into the complainant's mouth and directed the complainant to go up and down to which the complainant complied for about thirty seconds. 22 The complainant's teeth apparently made contact with the tip of the offender's penis to which the offender said, "Stop, your teeth hurt". The offender motioned with his lips over his teeth demonstrating to the complainant how he wanted him to continue. He told the complainant to "go again". The complainant complied, taking the offender's penis in his mouth for about five minutes and moving his mouth as directed. It is this incident to which sequence 2, ie the first count of sexual intercourse with a person under 10 relates. The complainant was quite young, being five years of age. The offence involved persistence on the part of the offender. Although a standard non-parole period did not apply, I would assess this matter as being slightly above mid-range, the factor taking it above the mid-range being the age of the complainant. 23 After that conduct the offender pulled down the complainant's shorts and underpants and knelt over the complainant after which he placed the complainant's penis in his mouth and sucked on it for about two minutes. The complainant's penis did not become erect. The offender got off the bed and pulled up his pants. The offender told the complainant to get up, which he did and he gave the complainant about $5 in change. This conduct is that to which sequence 4 on a Form 1 document relates. 24 The next (second) episode relates to when the complainant was seven or eight years of age and in about 1999 when the offender was living in a flat attached to the complainant's family home at an address in Cunningham Street, Dubbo. The offender and the complainant were home alone, the complainant's family being in Sydney in respect of medical treatment for one of the complainant's siblings. The offender, who was about 33 or 34 years of age, called the complainant to his bedroom and removed his own shorts and underpants, exposing his penis. He told the complainant to get on his knees and he complied. The offender took the complainant's head and forced his head to his groin and put his flaccid penis in the complainant's mouth. The complainant began to suck on the offender's penis which within a short time became erect. This is the conduct to which sequence 5 relates and is one of the Form 1 matters. 25 Once the offender's penis was erect he told the complainant to stand and pulled down the complainant's pants and underpants. Both stepped out of their clothing. The offender pulled the complainant towards the bed and told him to kneel on the bed. He knelt on the bed showing his bottom to the offender who obtained some lubricant from a cupboard. The facts then recite part of the complainant's statement, which I will also include within these facts as it graphically indicates what then occurred: "He grabbed me from behind my waist and pulled me back towards him. He then said, 'this is going to feel weird'. I felt his penis press up against my anus. I felt D [offender] pushing his penis slowly into my anus. I could feel what I now know to be lube on his penis as it was cold and wet. As he did this, I felt pain to my anus and I began to scream. He tried to push his penis even further into my anus and I continued to scream from the pain. I started to cry and was screaming out repeatedly 'Ow'. D [offender] tried to push his penis into my anus for a matter of seconds before he pulled it out. He grabbed me by the right shoulder and yelled at me, 'You're a wuss'. I fell off the bed onto the ground. I picked up my clothes and put them back on. He then yelled at me, 'Get out of the room'. I ran from the room". 26 This conduct is that which relates to sequence 8, a charge of sexual intercourse with a person under 10, and is one of the substantive matters for which the offender appears for sentence. The complainant was seven or eight, the intercourse was penile/anal and involved some degree of force and persistence by the offender. The complainant was screaming in pain. In these circumstances I am of the opinion that this is a serious example of sexual intercourse with a person under 10. Although the matter does not carry a standard non-parole period, I would find the offending is above mid-range, given the factors to which I have just referred. 27 The third episode relates to conduct that occurred in the latter part of 2004 when the complainant was 13 and in Year 7 at High School. From about 2001 the offender lived in a number of homes in Dubbo that he shared with his mother. The complainant went to an address in East Street Dubbo where his grandmother and the offender lived. The complainant went to the downstairs area, which was occupied by the offender, to play on one of the offender's computers. The offender was sitting on a chair in the room watching television. He called the complainant over to him and said, "Drop your dacks. I want to see if you've changed down there". The complainant said no and went back to the computer. The offender pulled him back and said in a firmer voice, "Drop them". 28 The complainant made no oral reply but lowered his pants and underpants exposing his penis. The offender took hold of the complainant's penis, put it in his mouth and began sucking on it and after a few minutes the complainant's penis became erect. Sequence 6 on a Form 1 document relates to this conduct. 29 After some few minutes the offender went to the bathroom and obtained some hair conditioner which he rubbed on the complainant's erect penis. The offender removed his shorts and underpants, knelt on a chair and said, "Stick it in". He complainant angrily replied, "No" to which the offender replied in an angry tone, "Do it". The complainant then inserted his penis into the offender's anus. The offender told the complainant to go in and out. The complainant complied for a few minutes but felt increasingly upset and sick. He removed his penis and told the offender that he could not do it anymore. This is the conduct to which sequence 7 (sexual intercourse with a person between ten and 14) relates. The matter is within the mid-range of objective seriousness. 30 The complainant apparently recalls telling his step-mother in 2011 that the offender had assaulted him from about the age of five. A further complaint was made to his stepmother and father after other family members had come forward. Matters involving SH - H 55115903 31 SH was born on 8 December 1997 and is the niece of the offender. The facts recite that the offender indecently and sexually assaulted SH on numerous occasions when she was between the ages of three or four to 10 with the indecent conduct ceasing with the onset of puberty. SH often slept over at the house of the offender and his mother who looked after her while her parents were away seeking medical treatment for a younger sibling. Even after the complainant moved from Dubbo she still returned to spend time in the school holidays. There are four substantive matters for which the offender appears for sentence and two additional matters on a Form 1 document. 32 The first of the substantive matters (sequence 1) relating to SH occurred when she was about five years of age between December 2002 and December 2003 and is a count of sexual intercourse with a person under 10. The maximum penalty was increased from 20 to 25 years during the period covered by the charge and Parliament specified a standard non-parole period also during the period covered by the charge. As I understood the submissions, it was the joint position of the parties that I should sentence on the basis that the maximum penalty was 20 years and that a standard non-parole period did not apply. Independently I have reached the conclusion that this is the basis on which I should deal with the matter. 33 The complainant was five years of age and the offender was 37 or 38. At the offender's suggestion the complainant was sleeping in the offender's bed on the bottom floor of the house. The complainant woke to find herself laying face down with her knees tucked up under her stomach and her bottom up in the air. Her pants and underpants had been pulled down to her ankles by the offender. She felt the offender pressing his body up against her from behind and "something hard and warm being pushed in and out of her vagina". Clearly, she is describing penile/vaginal intercourse. The complainant felt pain but did not call out. She saw the offender kneeling behind her. She said that it felt like that it went on "forever" but acknowledges that it may have been for a few minutes. The complainant rolled up into a ball crying and the offender returned to bed and went to sleep. The intercourse was penile/vaginal. The complainant was about five and therefore very young. The intercourse was painful and continued for several minutes. These factors in combination put the matter above the mid-range of seriousness. 34 The second episode involving SH involves one count of indecent assault on a person under 10 contrary to s 61M(2) of the Crimes Act (sequence 2 on a Form 1 document) and one count of sexual intercourse with a person under 10 contrary to s 66A of the Crimes Act, which is one of the substantive matters (sequence 3). The maximum penalty for the matter contrary to s 66A is twenty five years imprisonment. A standard non-parole period of 15 years applies to that matter. The aggravated indecent assault, although on a Form 1 is serious in itself noting that the maximum penalty for that offence was 10 years imprisonment with a standard non-parole period of eight years. 35 When the complainant was six, ie between December 2003 and December 2004, she was at home alone with the offender in his flat in East Street, Dubbo on an occasion after school. The offender was 38 or 39. The offender inquired of the complainant if she wanted to do him a favour. She agreed and walked toward him, the offender as she did so undid his pants and exposed his penis and said, "Touch it for me". She said "Why", with which the offender grabbed her am and placed her hand on his penis and moved it up and down for about five minutes. The offender's penis became erect. 36 The offender told the complainant to open her mouth. He grabbed the back of her head, pushing his erect penis into her mouth, the complainant describing it as nearly choking her. The offender moved his penis in and out of her mouth. This continued for about ten to fifteen minutes. The complainant was crying. The complainant "thinks" that the offender ejaculated on his stomach. 37 The sexual intercourse is fellatio. The complainant was six. There was some degree of force involved and the intercourse continued for 10 to 15 minutes. In these circumstances I am of the opinion that the matter is slightly above the mid-range of objective seriousness. If necessary I would also make the same assessment of the aggravated indecent assault. 38 The third episode so far as SH is concerned is a count of indecent assault on a person under 10 years, contrary to s 61M(2) of the Crimes Act and is sequence 4. It occurred between December 2003 and December 2004. It carries a maximum penalty of 10 years imprisonment and a standard non-parole period of eight years applies. 39 This occurred the day after the events of the second episode - ie the counts to which sequences 2 and 3 relate. The complainant was alone with the offender in the lounge room of his flat. He called her over to where he was seated. When she approached he unzipped his pants and exposed his penis. He then grabbed her hand and put it on his penis. He kept his hand on hers moving it up and down. His penis became erect. The complainant was crying. The conduct continued for ten to fifteen minutes before the offender ejaculated onto the complainant's hand. This was skin on skin contact with the complainant grabbing the complainant's hand. It lasted for ten to fifteen minutes and the complainant was crying. In these circumstances I assess the matter as being slightly above the mid-range of objective seriousness. 40 On an occasion after the events that I have just recited, the complainant was at the home of the offender and she sat on a chair in the lounge room. The offender asked her to get a sharp knife. Confused, she did so and handed the knife to the offender. The offender lowered his pants exposing his genitals and told her to "cut it off". He grabbed her hand, forcing it so the knife was touching his penis. She cried. The offender's penis was apparently not cut. There is no charge relating to this incident. 41 The next matters for which the offender appears for sentence are sequences 5 and 6 in what is described as the fourth charged episode in respect of SH. Sequence 5 is a count of sexual intercourse with a person under 10 contrary to s 66A of the Crimes Act on a Form 1 and sequence 6 is also a count of sexual intercourse with a person under 10. This offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years applies. 42 These offences occurred when the complainant was eight years of age between December 2005 and December 2006. The complainant was visiting her grandmother and the offender. The complainant and her younger cousin (JH) had agreed to spend the night. The two girls were in a back sun room playing with dolls. The grandmother had gone out and, accordingly, the girls were home alone with the offender. 43 The offender called out to SH, saying that he needed to talk to her. She went to his bedroom. Once there the offender closed the door behind her and lifted her onto the bed. He removed her pants and underpants while she sat on the side of the bed. He exposed his erect penis through the fly in his pants. He grabbed the complainant's head, pulled her face towards him and placed his penis into her mouth. He held the complainant's head while he moved his penis in and out for about five minutes. This conduct relates to sequence 5 which is on a Form 1 document. 44 The offender then rolled the complainant face down on to the bed. He pulled her legs under her chest and inserted his penis into her vagina, which caused immediate pain. The offender had one hand on one of her shoulders and his other hand on her back, pushing her down into the bed. He moved his penis in and out of her vagina for about half an hour. This stopped when the complainant's grandmother pulled up outside. The complainant went to her grandmother straight away told her that she was unwell and went home. JH remained. 45 This matter involves penile/vaginal intercourse that continued for about half an hour in circumstances where the offender was in effect holding the complainant on the bed. I am of the opinion that the matter is slightly above the mid-range of objective seriousness. 46 The facts recite that SH made a generalised complaint about the offender in 2008 but in 2010 and 2011 the complainant denied any wrongdoing against her in a conversation between her and JH. In 2011 SH made a complaint to her step mother and the abuse was disclosed to a counsellor. She was interviewed by police on 28 October 2011 and initially did not want to name the offender. She later did so but did not proceed any further with her complaint. She gave a detailed statement to police on 9 April 2014. Matters involving JH - H55085021 47 There are two charged episodes, one between June 2003 and August 2003 and another between June 2006 and December 2006. JH is also a niece of the offender. The facts recite that the offender indecently assaulted JH on numerous occasions when she was aged between seven and 13 with the improper activity ceasing when she reached puberty. 48 Sequence 2 is a charge of aggravated indecent assault contrary to s 61M(2) of the Crimes Act. The maximum penalty is 10 years imprisonment. A standard non-parole period of eight years applies to this charge. Sequence 4, which is the other substantive matter for which the offender appears for sentence in respect of JH, is a charge of sexual intercourse with a person between 10 and 14 contrary to s 66C(1) of the Crimes Act. The maximum penalty is 16 years imprisonment. There is no standard non-parole period applicable to the matter to which sequence 4 relates. 49 The first charged episode relates to an occasion a few weeks after the complainant's seventh birthday, which was on 17 June 2003. The complainant was visiting her grandmother and the offender was living downstairs. 50 The offender was showering while the complainant was watching the television in the offender's room. After showering, the offender went to the room wearing a towel around him. He said something to the effect of, "have you ever tried this before" or "Have you ever seen someone doing this?" He removed the towel and threw it on his bed and began masturbating. The offender then approached the complainant, took her hand and placed her hand on his erect penis in a masturbating motion. She tried to remove her hand but the offender held it firmly in place. This continued for about two minutes after which he went to the bathroom and returned to the bedroom naked. The complainant heard her grandmother call out and she went back upstairs but did not complain. The facts recite part of the complainant's statement to the effect that she could recall the offender repeating over time that what they were doing was not a bad thing. 51 The complainant was seven years of age. The act went on for a couple of minutes and involved the offender taking the complainant's hand and placing it on his erect penis after he had masturbated. The matter is within the mid-range of objective seriousness, but towards the upper end of the mid-range. 52 The second charged episode relating to JH occurred sometime after the complainant's tenth birthday, ie 17 June 2006, but before Christmas Day of 2006. The complainant was at her grandmother's home for a sleep over with her cousin SH. The grandmother went out and the offender returned from visiting a local fast food outlet. The complainant and SH (who incidentally, is one of the other victims of the offender's improper sexual conduct) played with dolls in a back room. The offender took SH to his room and sexually assaulted her. SH asked to be taken home but the complainant JH remained at the house. 53 Later that evening the grandmother went to bed. JH was playing on a computer. The offender told JH that she could sleep in his room. They both got into the bed and the offender turned on the television. After a short time the offender took the complainant's hand and placed it on his penis on the outside of his clothing and forced her hand in a masturbating motion while he held her hand in place. This went on for some few minutes after which the offender's penis became erect. This conduct relates to a charge of aggravated indecent assault contrary to s 61M(1) of the Crimes Act which is on Form 1 document which attaches to sequence 4. 54 Following the conduct outlined in the paragraph immediately above, the offender removed his lower clothing and the complainant's boxer shorts and underpants. He said, "It's OK, don't worry about it". He rolled the complainant on to her stomach lying on top of her. He then inserted his penis into the complainant's anus, which caused the complainant immediate pain. She began to cry into a pillow. The intercourse continued for about five minutes before the offender abruptly got up, wrapped a blanket around him and ran from the room. The complainant, sobbing, went to her grandmother's room. This act of intercourse relates to sequence 4. 55 The intercourse went on for some minutes and caused pain. The complainant was ten and therefore towards the lower end of the age range covered by the charge. The matter is in my opinion above the mid-range of objective seriousness. 56 The facts record that prior to making her police statement the complainant had not detailed these assaults to anyone. She spoke to SH. In 2013 she was contacted by LF and made a complaint in general terms. Matters involving EH - H55619169 57 Sequence two relates to a charge of aggravated indecent assault contrary to s 61M(2) of the Crimes Act which carries a maximum penalty of ten years imprisonment and to which a standard non-parole period of eight years applies. 58 The complainant lived at another country centre. On an occasion when she was eight - ie between February 2007 and January 2008 - she visited the offender's home, which he shared with his mother. In the evening the complainant was playing on a computer in the offender's bedroom. The offender exposed his penis to her and asked her to, "play with it and like suck on it and all that". He showed her how to touch his penis, which she did with her hand. This stopped when there was a noise from the stairs. 59 This matter involved skin on skin contact with the offender's exposed penis. The conduct did not continue for very long. On the facts before me there was no degree of force. The matter is towards the lower end of the mid-range of objective seriousness. 60 There is a matter on a Form 1 document which is exhibit a classified RC or X18 movie to a minor contrary to s 14(1) of the Classification (Publications, Films and Computer Games) Enforcement Act, 1995. This carries a fine of 100 penalty units. On a visit at the Christmas school holidays, again while the complainant was eight, the offender was home alone with the complainant. He told her to come to his room and she did so. Once there the offender showed the complainant photographs of adults having sex and later a movie showing adults having sex. The offender said, "We should try that". The complainant refused despite a number of requests. The grandmother arrived home and the complainant left the room. 61 A complaint was made when the complainant was about nine years of age. The complainant's mother was, according to the facts, too shocked to do anything about it and also thought that none of the complainant's father's family would believe it against a background of some difficult relationships. EH also complained to her stepmother in 2011. The complainant was interviewed by police in April 2014. Matters involving KB - H59226949 62 The complainant was born on 8 February 1983 and had a number of siblings. In about 1986 the complainant and her family moved to an address in Yarunga Street, Dubbo. The offender was the nephew of a neighbour who lived across the road. The families became friendly with each other. The offender committed offences against KB between February 1989 and December 1995. There are four substantive matters in respect of which the offender appears for sentence, namely, one count of indecent assault contrary to s 61E(1) of the Crimes Act which at the relevant time carried a maximum penalty of four years imprisonment, two charges of aggravated indecent assault contrary to s 61M(2) of the Crimes Act which at the time carried a maximum penalty of ten years imprisonment and one count of aggravated indecent assault contrary to s 61M(1) of the Crimes Act which carried a maximum penalty of seven years imprisonment. There is a charge of commit act of indecency contrary to s 61N which is on a Form 1 document. Standard non-parole periods did not apply at the time. 63 Going to sequence 1, a charge of indecent assault contrary to s 61E(1) of the Crimes Act, the offender's parents moved into a caravan which was in the yard of the home occupied by the offender. The complainant lived with other family members in Wellington because of the lack of room. The complainant was visiting her parents on an occasion when she was six - ie between February 1989 and February 1990. The complainant went into the house where she was alone with the offender. He stood naked in the doorway of his bedroom, called the complainant over and said, "Can you play with my doodle". She said that she did not want to. The offender took the complainant's hand and placed it over his penis and moved her hand in order that it masturbated him. The complainant maintained this continued for about twenty minutes. The offender ejaculated into a towel. I assess this matter as being above mid-range given the age of the complainant, the time for which the conduct continued and the fact of ejaculation. 64 The next incident involving KB occurred between February 1992 and February 1993 when she was nine years of age. This is sequence 3 and is a charge of aggravated indecent assault contrary to s 61M(2) of the Crimes Act, 1900, the complainant being under 10 years of age. On an occasion just before Christmas the complainant went to the offender's home. He was 26 or 27 years of age at the time. The complainant was in his bedroom. He pulled down his shorts and underpants, standing in front of the complainant and asked her to play with his penis. She felt she had no choice. He took her hand and placed it on his penis and moved it so it masturbated him. The complainant recalled this continued for twenty to thirty minutes and the offender ejaculated into a towel. The offender told the complainant not to tell anyone. I assess this matter as slightly above mid-range noting the complainant was eight, the length of time for which the conduct continued and the fact that the offender ejaculated. 65 Sequences 5 and 6 are the next matters involving KB, with sequence 5 being a matter on a Form 1 that attaches to sequence 6. Sequence 6 is a charge of aggravated indecent assault contrary to s 61M(2), the complainant being under 10 years of age and the Form 1 matter (sequence 5) is a charge of commit act of indecency. These incidents occurred when the complainant was eight or nine years of age. 66 The complainant was alone with the offender at his home. The offender was about 26 or 27. He gave the complainant some money to go to a nearby shop and she went and bought some lollies. She returned and began to eat the lollies. The offender got up, went to his bedroom and then called out to the complainant. She went to the offender's room to find the offender naked from the waist down, masturbating. This act is the commit act of indecency on the Form 1. The offender then took the complainant's hand and placed it on his penis and he moved her hand back and forth so as to masturbate his penis. This continued for about 20 to 30 minutes and the offender ejaculated into a towel. This is the conduct to which sequence 6 relates. I assess the matter as being slightly above mid-range given the nature of the conduct, the time for which it continued and the ejaculation. 67 The remaining matter involving KB occurred in the Hunter Valley region to where the offender moved in the mid 1990's. He was aged 29 or 30 years. The complainant was 11 or 12. The offender took the complainant to visit his parents. The complainant walked down the hallway and the offender who was in his room called on her to come into his room. She went into the room and he was naked from the waist down. He asked her did she want to play with his doodle. She did not reply. The offender took the complainant's hand and placed it on his penis and moved it up and down so as to masturbate him. He told her that it was okay and that he would not hurt her. The offender ejaculated into a towel and told the complainant not to tell anyone. This is the conduct to which sequence 7 relates, which is a charge of Aggravated indecent assault contrary to s 61M(1) of the Crimes Act, 1900 the complainant being under 16 years. I assess the matter as slightly above mid-range (for an offence contrary to s 61M(1) noting the age of the complainant, the conduct and the ejaculation. 68 The complainant made a brief disclosure to her mother in about 2013 and then to other family members. During the police investigation a surveillance device warrant was obtained. LF spoke to the offender and asked about KB. The offender's response could only be construed as an admission. Arrest 69 The offender was arrested on 20 August 2015 and declined to be interviewed. 70 The facts in places recite in respect of some of the complainants that apart from the specific matters for which the offender appears for sentence that there was other conduct. In those cases the offender is sentenced on the basis that the specific offences in respect of which sentences are imposed, are not isolated incidents. 71 This matter involves seven different complainants and offending that occurred over a period of approximately twenty years. The offender repeatedly took advantage of the complainants who were members of his extended family. The offending for which the offender now appears for sentence demonstrates a very significant breach of trust. 72 Given what can accurately be described as the enormity of the truly abhorrent offending, it is neither exaggeration nor hyperbole to observe that the offender over many years put his own depraved sexual gratification before the welfare of his young victims. All too often the offender was supposed to be caring for or looking after those young children who he violated. Criminal History 73 The criminal history appears at tab 5 of the Crown tender bundle, exhibit A. The offender was born in 1965 and accordingly is now almost 51 years of age. He has no matters recorded against him, however, given the nature of the offending the lack of record carries less weight than it would in other matters. As much was accepted by counsel for the offender in the course of the sentence hearing. 74 The offender has been in custody referable to these matters since 16 June 2014 and it is accepted that any sentence date from that date. General Deterrence 75 The need for general deterrence when sentencing for child sexual assault offences is undoubted and goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. See also decisions such as R v Burchell (1987) 34 A Crim R 14, R v BJW (2000) 112 A Crim R 1, R v CMB [2014] NSWCCA 5 at [46]-[48] and more recently R v Van Ryn [2016] NSWCCA 1 at [187]. The successful appeal to the High Court in R v CMB does not impact on what the Court of Criminal Appeal said on the issue of general deterrence. 76 The Crown Prosecutor reduced most of his submissions to writing - see MFI 2 on sentence. In those submissions the Crown Prosecutor deals extensively with the issue of need for general deterrence. 77 Apart from the very important aspect of general deterrence there is also the need to give proper regard to s 3A(c) of the Crimes (Sentencing Procedure) Act, namely to take into account when passing sentence the need to protect the community. I emphasise that this comment is directed solely towards sub-paragraph (c) of s 3A of the Act and I am certainly not suggesting that the principles enunciated by the High Court in Veen v The Queen (No 2) 164 CLR 465 are enlivened. Victim Impact Statements 78 Exhibit B on sentence is a victim impact statement from LF. Exhibit C on sentence is a victim impact statement by JH. Exhibit D on sentence is a victim impact statement by TB and exhibit E on sentence is a victim impact statement by MH. LF read her victim impact statement to the Court. Those statements speak eloquently of the long term harm that is done to victims of child sexual assault. The victims speak openly of the anger, anxiety and emotional harm that the offender's conduct has caused them. The effect of the offender's conduct is taken into account by giving appropriate regard to s 3A(g) of the Crimes (Sentencing Procedure) Act which provides that one of the purposes of sentencing is to recognise the harm done to the victim and the community. 79 However, without deprecating the undoubted serious effects the offender's conduct has had on his victims, given the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8, especially at [51]-[76], I could not be satisfied beyond reasonable doubt that the victims have suffered substantial emotional harm such that it is taken into account as a matter of separate aggravation pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.. Case for the offender 80 The offender gave evidence at the sentence hearing, although his evidence was relatively short. He said that he had read the agreed facts and the Form 1 documents and he accepted that he would be sentenced on those facts. He maintained he was truthful with the two psychologists who have provided reports. Ms Caroline Hare of Lennings Seidler Collins Psychologists has provided a report dated 5 April 2016, which is exhibit 1 on sentence. Mr Patrick Sheehan of "Big Picture" Psychology has provided a report of 26 May 2016 which is exhibit 2 on sentence. 81 The offender gave evidence that he had thought about his conduct since he had been arrested and he had thought of the conduct before his arrest. He heard some of the victim impact statements being read to the court. When asked what he wanted to say about his conduct he said that he was sorry, that he wished it had never happened, all he can say is that he sorry, he accepted that he has caused a lot of pain and he was sorry for what he had done. 82 Counsel then took the offender to paragraph 24 of Mr Sheehan's report and in particular the offender slamming his penis in a door in an attempt to stop him from offending. The offender said in evidence that he did that so that he would not do it again. The offender also said (my memory is that it was under cross-examination) that he has been able to stop offending by using pain. 83 Further under cross-examination the Crown Prosecutor asked a number of questions in particular on the conduct relating to the male victim MH. The offender acknowledged that he had molested seven children. 84 Given the evidence of the offender and the pleas of guilty, taken with the contents of the two psychological reports, I am prepared to find on balance that the offender is remorseful. In particular, I note that Mr Sheehan (in exhibit 2) at paragraph 24 sets out that the offender showed some empathy for the victims, which was unusual at the pre-sentence stage of proceedings in matters such as this. Mr Sheehan also observed that the offender became tearful when describing the offences against his niece. 85 There is a considerable body of material that is repeated in the psychological reports. The offender's father was of Anglo-Saxon heritage whereas his mother is of aboriginal descent. His father was a strict disciplinarian who enforced discipline by significant corporal punishment in the home. His father was violent towards his mother. His father worked on the railways and was required to be absent from Dubbo for several weeks at a time. The offender had a physical confrontation with his father when the offender was in his late twenties. It seems that the relationship between the offender and his father improved after this confrontation. His parents separated when he was in his mid-thirties. The offender maintains telephone contact with his father. 86 The offender suffered significant physical health issues throughout most of his life. These were primarily asthma and rheumatic fever. His recurrent illnesses forced him to be absent from school for extended periods. He completed Year 10 and commenced Year 11 but was advised not to continue with Year 11. He was bullied and isolated at high school and became somewhat of a loner. He has had very few friends throughout his life. 87 The authors of both exhibits 1 and 2 refer to the offender himself being the victim of sexual abuse in his childhood. Ms Hare (at paragraph 11) sets out that an identified person, who it seems is probably an uncle, fondled him and fellated him. Ms Hare said this occurred when the offender was five years of age. Mr Sheehan (paragraph 7 exhibit 2) gives an account of similar conduct but maintains that it occurred when the offender was seven years of age. Apart from this conduct there was also another male who would speak of ejaculation and matters sexual with the offender when he was a child, including exposing the offender to pornography, but this did not progress or develop into any sexual conduct. Mr Sheehan observes that that the offender could see no connection between these experiences and his own sexually abusive behaviour. 88 Both reports (exhibits 1 and 2) set out that the offender has worked in retail, printing and the security industry. He accepts that given the conviction for these matters he can never work in the security industry again. 89 The offender reached puberty at about thirteen years of age but was sexually aware well before that because of the inappropriate experiences with adult men. The offender identified as heterosexual but has never had a long-term intimate partner. His intimate encounters seem to have been limited and fleeting. 90 Mr Sheehan (at paragraph 16 of exhibit 2) sets out that the offender acknowledged repeated sexual behaviour towards young children but denied a dominant sexual interest towards children, feeling more naturally sexually attracted to an adult somatotype. He goes on to observe that the offender was unable to reconcile his account of his sexual interests with his offending behaviour other than to offer that he had experienced longitudinal sexual frustration and that it was somehow easier for him to have approached children for a sexual outlet than adults. 91 Ms Hare and Mr Sheehan both diagnose a Persistent Depressive Disorder (see for example paragraph 20 of exhibit 2). Mr Sheehan (paragraph 20 of exhibit 2) also diagnoses Paedophilic Disorder (non-exclusive, interest in males and females). He goes on to note that to a large extent the offender's pathway towards sexual offending against children would appear to be an artefact of a self-imposed blockage of sexual expression towards peer aged partners, not due to a disinterest in peer aged sexual partners. 92 There is nothing within either of the reports to suggest that there is a causal connection between any mental condition or psychiatric condition or low intellectual functioning with the offending. I note that Ms Hare declined (see paragraph 29 of exhibit 1) to give an overall IQ score because of the somewhat rare difference between the verbal comprehension and non-verbal comprehension scores. However, she was definite that there is no evidence to suggest that the offender has an intellectual disability. 93 The authors of both exhibits 1 and 2 go into some detail on the issue of the likelihood of the offender re-offending. At paragraph 34 of exhibit 1 Ms Hare opines that given the offender's score of three on the STATIC-99 test he is in the moderate-low risk category. However at paragraph 40 she opines that using the Risk for Sexual Violence Protocol (RSVP) the offender's level of dynamic risk is moderate and that he requires offence-focussed treatment to effectively manage his risk of sexual re-offending in the future. At paragraph 44 she says that on review of the current static and dynamic risk and protective factors the offender presents an overall combined risk of sexual re-offending that is moderate-low. 94 Mr Sheehan, it would appear, used the same diagnostic tools. At paragraph 36 of his report he concludes that, "…the overall totality of information would suggest that his risk of re-offending would be somewhere in the Moderate category. Mr Sheehan goes on to observe that: "He [the offender] has significant psychosocial dysfunction, but no characteristics of antisocial orientation. He also acknowledges his behaviour, is remorseful and wants to overcome his behaviour. At the age of 50 years, he is moving into a period of life where offending becomes increasingly less likely" 95 The last matter to which Mr Sheehan alludes is significant on the issue of whether the offender is likely to re-offend. The sentence that will be imposed at the conclusion of these remarks will be particularly significant. Given the opinions of the authors of exhibits 1 and 2 and what will be the age of the offender at his release, I am prepared to find on the balance of probabilities that the offender is unlikely to re-offend. 96 On the issue of rehabilitation, it will depend to a very large extent whether the offender actively participates in treatment programmes that are available to him in custody. Mr Sheehan (paragraph 39) sets out that the offender expressed a desire to participate in a sex offender treatment programme. Ms Hare recommends (paragraph 47) that the offender receive treatment to manage his risk successfully. Ms Hare also recommends various courses and activities upon release. Given what is to be the length of the sentence that is premature. 97 Mr Nash of counsel submitted that, unusually, the offending conduct stopped before the offender was apprehended in respect of these matters. The early signs of the offender wishing to participate in an appropriate sex offender programme are certainly promising. However, it is the fact that the conduct ceased in 2009 well before the offender's arrest that entitles the offender to a finding on balance that there are good prospects of rehabilitation. There is one reservation to this finding. Long term rehabilitation will depend very much on the sincerity of the offender's stated intention and his participation in any programme. Submissions made by each counsel 98 Mr Nash submitted that the biggest task will be making an appropriate assessment of totality. In respect of the matters that carry a standard non-parole period, I went through and made preliminary indications to counsel in the sentence hearing. I made notes on a table at the time and so far as I am aware the findings made as to the objective seriousness of each of the matters is consistent with the indication given in the sentence hearing. 99 Mr Nash submitted on the issue of contrition and remorse. The submissions continued that the offender indicated from the very beginning that he intended to plead guilty. A quick review of the papers at committal would indicate that this submission is well founded. I have already made a finding that the offender is entitled to a finding on balance that he is remorseful. 100 Submissions were then made relating to statistics. Mr Nash reminded me that I will need to give proper regard to the sentencing patterns that were applicable at the time, given that some of the offending occurred in the late 1980's and early 1990's. Although I have no recollection or note of the decision being referred to by either counsel in oral submissions, the table annexed to the decision of PWB v The Queen [2011] NSWCCA 84 will be of considerable assistance. On the issue of statistics, the limitation on the use of the statistics was again made clear by Bathurst CJ (Schmidt and Wilson JJ agreeing) in SS v The Queen [2016] NSWCCA 197. Also see for e.g. Brown v The Queen [2014] NSWCCA 215 at [80]-[81] per Garling J. 101 Mr Nash also submitted that since the time of the offending there has been an upward movement in the sentences imposed for this type of offending. That is undoubtedly the case and I note that the maximum penalties have also increased. I have set out the relevant maximum penalty at the time when dealing with each of the offences. 102 Mr Nash went on to concede in his submissions that the offending in many instances involves a breach of a position of trust in that the child victims had been left for him to care for. As I have already observed in the course of these remarks, this offending is demonstrative of a very significant and persistent breach of trust. 103 It was then submitted that there a number of matters in mitigation. Initially, there is the plea of guilty; the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. At the sentence hearing I indicated that it was my intention to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. Part of what must occur is that I have to indicate the indicative sentences in respect of each matter. I will indicate the starting point, ie the sentence before the 25% discount for the plea of guilty is applied in each matter. 104 The offender has no criminal record, however, given the nature of the offending that matter assumes less significance than it might otherwise; Counsel for the offender conceded as much. Mention was made in submissions of s 21A(5A) of the Crimes (Sentencing Procedure) Act. According to a note I made at the time, Mr Nash submitted that that provision does not preclude some consideration being given to the offender for his lack of record. In the matter presently under consideration I could not find that the offender's character assisted him in the commission of the offences. This is particularly so given the familial connection with the offender and the victims. I also note in this regard the decision of AH v The Queen [2015] NSWCCA 51 at [20]-[25] per Hidden J. Although of less weight, some consideration must be given to the offender for his lack of record. 105 Mr Nash went on to submit that there were two further matters that argue for some leniency to be extended to the offender. The first of these were that unusually the offending stopped before the offender was apprehended. In this regard I was reminded of the offender's evidence that he used pain to assist him stop offending. I am of the opinion that there some substance to this submission. 106 The other matter that entitled the offender to some leniency was the issue of remorse. In this regard Mr Nash reminded me of the evidence of the offender and he further submitted that what the offender said in his oral evidence was supported by the reports of Ms Hare and Mr Sheehan. In that regard I was reminded in particular of paragraphs 23 and 24 at page 11 of Mr Sheehan's report. I have already found on balance that the offender is remorseful. 107 I have also made findings favourable to the offender on the issue of prospects of rehabilitation and that he is unlikely to re-offend. 108 Mr Nash submitted to the effect that the matters on the various Form 1 documents would not significantly impact on the ultimate sentence to be imposed. The argument continued that this was essentially because the matters on the Forms 1 were generally another offence committed within the one episode. The issues of partial accumulation and totality are all part of the applicable sentencing patterns of the time at which the offending occurred. Given the nature of the offending and the sheer number of offences on the Forms 1, the matters on the Forms 1 must have some meaningful impact on the sentence that is to be imposed. Likewise I will need to give proper regard to the issues of the need for partial accumulation given the number of victims, the number of offences and the period over which the offending occurred and of course, the issue of totality. 109 Mr Nash submitted that given the totality of the offending an appropriate sentence would be one within the vicinity of a non-parole period of 15 years with the total sentence of 20 years, or perhaps a little less. Mr Nash did not argue for a finding of special circumstances. Given what will be the sentence, the statutory ratio will still provide ample time for the authorities to supervise the offender on his release. The parties had paid me the courtesy of making the material available before the sentence hearing and accordingly, I was able to make some preliminary assessment of the matter. I indicated towards the end of the sentence hearing that the non-parole period would be no less than 15 years. This was in response to the submission by Mr Nash and was not intended as an indication to the offender that I would impose a non-parole period of 15 years. 110 Clearly, proper and careful attention will need to be given to the issues of partial accumulation and totality. There are seven different victims and the offending occurred over a period approaching twenty years. These factors alone indicate that there must be some meaningful accumulation. 111 The Crown Prosecutor helpfully reduced most of his submissions to writing, those submissions being marked MFI 1 on sentence. They were supplemented by brief oral submissions. The Crown Prosecutor reminds me of the need for general deterrence. I have already dealt with that issue and referred to a number of authorities. 112 Further, the Crown Prosecutor's written submissions deal with the issue of sentencing for offending that occurred many years earlier. At pp 2 and 3 of his submissions a number of authorities are referred to, including PWB v The Queen to which I have already referred. The decision of R v MJR (2002) 130 A Crim R 481 at [107] was also referred to. Sully J (with the other members of the Court agreeing) said: "The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence…and be proportional to the criminality involved in the offence committed…Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at the that time". 113 The Crown Prosecutor also very helpfully set out a table of comparable cases at the conclusion of his written submissions. In his oral submissions the Crown reminded me of the lengthy period over which the offending occurred and the tender ages of the child victims. He also reminded me that the offences included several forms of penetrative sexual conduct. Further, the Crown submitted that the offending conduct would have had adverse effects on the victims. It is accepted that the type of conduct for which offender appears for sentence has long term effects on the victims. General Remarks 114 In passing sentence the court must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, and (g) to recognise the harm done to the victim of the crime and the community. I have already referred to a number of these issues in the course of these remarks. 115 Section 5(1) of the Crimes (Sentencing Procedure) Act provides that a court must not sentence an offender to imprisonment unless it is satisfied having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I have already made it plain that there must be a very substantial sentence of full time imprisonment in this matter. 116 As previously indicated I invoke section 53A of the Crimes (Sentencing Procedure) Act and propose to impose an aggregate sentence. These remarks have been reduced to writing and a copy will be provided to the parties immediately following the pronouncement of sentence. As I am imposing an aggregate sentence it is necessary for me to give indicative sentences. Indicative sentences 117 I will adopt the very helpful table provided by the Crown which is part of the Crown tender bundle, exhibit A on sentence, and include the indicative sentence in the last column. (1) H55495379 - 2014/00235510 as relates to LF Seq Offence Description Max penalty & SNPP where applicable Indicative sentence and starting point Indecent assault where victim < 10 years 2 s.61M(2) Crimes Act 1900 Between 10.7.1993 - 31.12.1993 10 years Total sentence of thirty months with a starting point of three and one half years with some rounding down. LF aged 7 years Forced complainant to masturbate him