District Court New South Wales Medium Neutral Citation: R v G [2021] NSWDC 78 Hearing dates: 3 December 2020, 12 and 26 February 2021 Date of orders: 26 February 2010 Decision date: 26 February 2021 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: See [172] onwards Catchwords: CRIMINAL LAW –– Child sex offences – aggravated indecent assault – sexual touching of a child – use of child for the production of child abuse material – maintaining an unlawful sexual relationship with a child and where a child was conceived. Offending involved four victims overall. CRIMINAL LAW –– Where the Offender used carriage service to publish child abuse material. SENTENCE –– s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to State offences – aggravating factors – offences committed in position of trust and vulnerability of victims considered – mitigating factors – discount for early guilty pleas and assistance to law enforcement authorities in some circumstances substantial – extent of assistance discounts to be applied – where offending preceded 2018 amendments – whether the Offender to be sentenced on s 66EA of the Crimes Act 1900 (NSW) as it now stands or prior to the 2018 amendments. SENTENCE –– previous record of convictions relating to disseminating or possess child pornography, using a carriage service to access child pornography and using a carriage service to make child pornography – elevated risk of reoffending – remorse and contrition established. SENTENCE –– finding of special circumstances by reason of partial accumulation of Commonwealth and State aggregate sentences. Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 66DA, 66EA, 91G, 91H Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 21A, 23, 25AA, 28, 30E, 33, 44 Crimes Act 1914 (Cth), s 16A, 19AC, 20 Criminal Code Act 1995 (Cth), s 474.19 Cases Cited: Burr v R [2020] NSWCCA 282 Eacott (a pseudonym) v R [2019] NSWCCA 158 R v BJW (2000) 112 A Crim R 1 Shannon v R [2006] NSWCCA 39 R v Gavel (2014) 239 A Crim R 469 R v Nelson (2016) NSWCCA 130 R v PWH (unrep, 20/2/1992, NSWCCA) R v T (1990) 47 A Crim R 29 R v Catell [2019] NSWCCA 297 R v PGM [2008] NSWCCA 172 R v JDB (2005) 153 A Crim R 164 R v Boulad [2005] NSWCCA 289 ARS v R [2011] NSWCCA 266 R v Hutchinson [2018] NSWCCA 152 Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 R v Leeuw [2015] NSWCCA 183 R v Freedman [2017] NSWCCA 201 R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCA 309 Buckely v R [2021] NSWCCA 6 at [82] Panetta v R [2016] NSWCCA 85 Veen v R [No 2] (1998) 164 CLR 465. Attorney General's Application under s 37 of the Crime (Sentencing Procedure) Act 1999 No1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518. Category: Sentence Parties: Regina (the Crown) G (the Offender) Representation: Counsel: Mr B N Queenan (the Crown) Mr B Neild (the Offender) Solicitors: Director of Public Prosecutions (the Crown) Legal Aid NSW (the Offender) File Number(s): 2019/240887 Publication restriction: Section 578A(2) of the Crimes Act 1900 (NSW) and Section 15A of the Children's (Criminal Proceedings) Act 1987 (NSW) apply. Pseudonyms A, B, C, D and PB are used for persons who were children, and G for the Offender. Judgment 1. The Offender appeared for sentence before me on 3 December 2020 in relation to a number of matters concerning four victims as well as one further offence. They are as follows: 2. In relation to A: 1. Sequence 11: that between 1 January 2018 and 1 April 2019, at Bulahdelah in the State of New South Wales, he did use a carriage service to publish child pornography material, namely photographs of A. This is an offence contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth) (the 1995 Act). This offence carries a maximum penalty of 15 years imprisonment. 2. Sequence 14: that between 19 May 2018 and 30 November 2018, at Bulahdelah in the State of New South Wales, he did assault A and at the time of such assault did commit an act of indecency on A , a person then under the age of 16 years, namely, 8 years. This is an offence contrary to s 61M(2) of the Crimes Act 1900 (NSW) (the 1900 Act) and carries a maximum penalty of 10 years imprisonment, with a standard non-parole period of 8 years imprisonment. 3. Sequence 17: that between 1 December 2018 and 1 May 2019, in Bulahdelah in the State of New South Wales, he did sexually touch A, a child who was then under the age of 10 years, namely 8 years of age. This is an offence contrary to s 66DA(a) of the 1900 Act and carries a maximum penalty of 16 years imprisonment with a standard non-parole of 8 years imprisonment. 1. In relation to Sequence 14, the Offender has asked that I take into account the following matters on the Form 1: 1. Sequence 15: that between 1 December 2018 and 1 May 2019, in Bulahdelah in the State of New South Wales, he did sexually touch A, a child who was then under the age of 10 years, namely 8 years of age. This is an offence contrary s 66DA(a) of the 1900 Act and carries a maximum penalty of 16 years imprisonment and a standard non-parole period of 8 years imprisonment. 2. Sequence 16: that between 1 December 2018 and 1 May 2019, in Bulahdelah in the State of New South Wales, he did sexually touch A, a child who was then under the age of 10 years, namely 8 years of age. This is an offence contrary s 66DA(a) of the 1900 Act and carries a maximum penalty of 16 years imprisonment and a standard non-parole period of 8 years imprisonment. 1. In relation to Sequence 17, the Offender has asked that I take into account: 1. Sequence 8 on the Form 1, that between 1 December 2018 and 18 May 2019, in Bulahdelah in the State of New South Wales, he did use A, a child under 14 years, namely 8 years, for the production of child abuse material. This is an offence contrary to s 91G(1)(a) of the 1900 Act and carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 6 years imprisonment. 1. In relation to B: 1. Sequence 2: that between 1 April 2019 and 30 April 2019, at Bulahdelah in the State of New South Wales, he did sexually touch B, a child who was then under the age of 10 years, namely 3 years of age. This is an offence contrary to s 66DA(a) of the 1900 Act and carries a maximum penalty of 16 years imprisonment and a standard non-parole period of 8 years imprisonment. 2. Sequence 12: that between 1 April 2019 and 30 April 2019, at Bulahdelah in the State of New South Wales, he did use a carriage service to publish child pornography material, namely photographs of B. This is an offence contrary to s 474.19(1) of the 1995 Act and carries a maximum penalty of 15 years imprisonment. 1. In relation to Sequence 2, the Offender has asked that I take into account the following matters on the Form 1: 1. Sequence 1: that between 1 April 2019 and 30 April 2019, at Bulahdelah in the State of New South Wales, he did sexually touch B, a child who was then under the age of 10 years, namely 3 years of age. This is an offence contrary to s 66DA(a) of the 1900 Act and carries a maximum penalty of 16 years imprisonment, and a standard non-parole period of 8 years imprisonment. 2. Sequence 9: that between 1 January 2018 and 1 April 2019, at Bulahdelah in the State of New South Wales, he did use B a child under the age of 14 years, namely 3 years of age for the production of child abuse material. This is an offence contrary to s 91G(1)(a) of the 1900 Act and carries a maximum penalty of 14 years imprisonment, with a standard non-parole period of 6 years imprisonment. 1. In relation to C: 1. Sequence 4: that between 1 April 2019 and 30 April 2019, in Bulahdelah in the State of New South Wales, he did sexually touch C, a child who was then under the age of 10 years, namely 1 year of age. This is an offence contrary to s 66DA(a) of the 1900 Act and carries a maximum penalty of 16 years imprisonment, and a standard non-parole period of 8 years imprisonment. 2. Sequence 13: that between 1 January 2018 and 30 April 2019, in Bulahdelah in the State of New South Wales, he did use a carriage service to publish child pornography material, namely photographs of C. This is an offence contrary to s 474.19(1) of the 1995 Act and carries a maximum penalty of 15 years imprisonment. 1. In relation to Sequence 4, the Offender has asked that I take into account the following matters on the Form 1: 1. Sequence 3: that between 1 April 2019 and 30 April 2019, in Bulahdelah in the State of New South Wales, he did sexually touch C, a child who was then under the age of 10 years, namely 1 year of age. This is an offence contrary to s 66DA(a) of the 1900 Act and carries a maximum penalty of 16 years imprisonment, and a standard non-parole period of 8 years imprisonment 2. Sequence 10: that between 1 January 2018 and 1 April 2019, in Bulahdelah in the State of New South Wales, he did use C, a child under the age of 14 years, namely 1 year of age, for the production of child abuse material. This is an offence contrary to s 91G(1)(a) of the 1900 Act and carries a maximum penalty of 14 years imprisonment, with a standard non-parole period of 6 years imprisonment. 1. In relation to D, the Offender has pleaded guilty to Sequence 32, that between 1 January 1995 and 31 May 2000, in Nerong and Taree in the State of New South Wales, he did maintain an unlawful sexual relationship with D, then a child under the age of 16, namely 8 to 13 years of age, in which he engaged in the following two or more unlawful sexual acts: 1. The Offender touching and rubbing D's thighs and vagina; 2. The Offender having D masturbate his penis; 3. The Offender having penile-vaginal intercourse with D; 4. The Offender having D perform fellatio on him; and 5. The Offender performing cunnilingus on D. This is an offence contrary to s 66EA of the 1900 Act and carries a maximum penalty of life imprisonment with no standard non-parole period. [1] 1. In addition to the above offending, the Offender has pled guilty to Sequence 18, that on 2 August 2019, at Bulahdelah in the State of New South Wales, he did possess child abuse material. This is an offence contrary to s 91H(2) of the 1900 Act and carries a maximum penalty of 10 years imprisonment. 2. Overall, the Offender is to be sentenced to the following: Victim Offending Form 1 matters A Sequence 11 – Use carriage service to publish child abuse material Sequence 14 – Aggravated indecent assault Sequence 15 – Sexual touching of child under 10 years Sequence 16 – Sexual touching of child under 10 years Sequence 17 – Sexual touching of child under 10 years Sequence 8 – Use a child in the production of child abuse material B Sequence 2 – Sexual touching of child under 10 years Sequence 1 – Sexual touching of child under 10 years Sequence 9 – Use a child in the production of child abuse material Sequence 12 – Use carriage service to publish child abuse material C Sequence 4 – Sexual touching of child under 10 years Sequence 3 – Sexual touching of child under 10 years Sequence 10 – Use a child in the production of child abuse material Sequence 13 – Use carriage service to publish child abuse material D Sequence 32 – Persistent sexual abuse of child under 16 years Sequence 18 – Possess child abuse material Agreed Facts Background 1. The Offender was born in 1968. The four victims are:- 1. A, born in 2010, who is the Offender's step-granddaughter. 2. B, born in 2015, who is the Offender's step-granddaughter and the daughter of D. 3. C, born in 2017, who is the Offender's step-granddaughter and the daughter of D. 4. D, born in 1986, who is the Offender's step daughter. 1. D has known the Offender since she was 18 months old when her mother, K, began a relationship and moved in with the Offender. At the time, K was pregnant with her second daughter, E. D and E's father was killed in a motorbike accident in 1989. 2. From 1988 to about August or September 2018, the Offender resided with K, apart from some brief periods of separation. The Offender and K had four children together. D and E were raised as the Offender's step-daughters. Prior to the current police investigation, D and E would call the Offender "Dad". A lived with the Offender and her mother until she moved out of home in about 2003-04. 3. In about July or August 2007, D met her partner and commenced living with him in Bulahdelah and they had three children, two of which were B and C. 4. In about 2012, D and her family moved to Tamworth. They continued to visit the Offender and K during the school holidays. The Offender and K would also visit D and her family in Tamworth. 5. E lived with the Offender and her mother until she met her partner and moved in with him. They had two children together, one of whom was A. 6. E and her children continued to reside in Bulahdelah and she and her children continued to visit the Offender and K until August 2019 when the Offender was arrested. Around August or September 2018, K and the Offender separated and did not reconcile. At the time of the arrest on 2 August 2019, the Offender resided at separate premises in Bulahdelah. Police investigation 1. Queensland Police Service Task Force Argos was involved in the investigation of a number of 'dark net' websites, including website on 'The Onion Right' (TOR) network. 2. In early 2019, while conducting investigations on a number of TOR websites known to facilitate uploading and the exchange of child abuse material, Task Force Argos investigators commenced monitoring a user called "GrandDad of 6" who had alternative usernames of "GrandDadofsix", "GrandDad", "AusPedo" and "ausdad". It was evident from the user's posts that the user was responsible for sharing newly produced material featuring the sexual abuse of more than one female child and that he himself was responsible for production of that material. 3. Task Force Argos investigators located a series of child abuse images posted by that user which involved pre-pubescent, female children believed to be located in NSW. In April 2019, this information was forwarded to investigators from the NSW Victim Identification Team, attached to the NSW Police Force Child Exploitation Internet Unit (CEIU). Detective Senior Constable Timothy Axtens (DSC Axtens) of the CEIU commenced an investigation into the images to identify the victims and offender. 4. DSC Axtens made enquiries with a number of schools throughout New South Wales in an attempt to identify the victims depicted in the child abuse material. On 1 August 2019, DSC Axtens made contact with the principal of a school in Bulahdelah, who identified one of the children depicted in the images police had provided to him. The principal informed police that the child was A, who was a student at his school and was aged 9 years old at the time. Police confirmed the identity of A with the principal and then identified the Offender, A's step-grandfather, as a suspect. Arrest 1. At about 12.20pm on Friday, 2 August 2019, the Offender was arrested in Bulahdelah, NSW. The Offender was cautioned and searched and Police located an Oppo brand mobile phone in his possession. 2. The Offender was conveyed to Forster Police Station, where he was introduced to the custody manager and informed of his rights. The Offender agreed to participate in an electronically recorded interview. [2] 3. After being cautioned, the Offender made admissions to police that he had used his phone and the internet to upload and download child abuse material and that he had "molested" three of his grandchildren and one of his step-daughters. 4. The admissions made by the Offender to Police in relation to the offending are as follows: Offences A 1. The first time the Offender touched A's vagina was just after her 8th birthday in 2018. A was at the Offender's home in Bulahdelah, alone with the Offender during the late afternoon as she wanted to stay there for the night. A used to stay at the Offender's house regularly. 2. A and the Offender were watching a movie together when the Offender rubbed up the inside of A's legs and put his hand inside her underwear and started to rub the outside of her vagina up and down with his fingers. The Offender was sexually aroused and had an erection. The Offender didn't say anything to A and she did not say anything to the Offender. 3. After "a while", A pushed the Offender's hand away and he stopped. The Offender said, "I'm sorry" and told A that if she didn't like it, to ask him to stop. These facts constitute Sequence 14. 4. The Offender told police that the fourth or fifth time he touched A's vagina was in the summer school holidays of 2018, around December 2018. The Offender was sitting in the lounge room with A. It was early morning as A had stayed the night before at the Offender's house. The Offender was sitting on the lounge and A was sitting beside him on the lounge. The Offender put his hand inside A's underwear and rubbed the outside of her vagina with his fingers. The Offender's penis was erect. These facts constitute Sequence 15 (Form 1 matter attaching to Sequence 14). 5. On this same occasion, while the Offender was touching A's vagina, he took her hand and tried to put it on his erect penis on the outside of his clothing. He was wearing boxer shorts. A said "No". The Offender said sorry and told her he wouldn't try to make her do that again. These facts constitute Sequence 16 (Form 1 matter attaching to Sequence 14). 6. The Offender told Police that the last time he touched A's vagina was just before her 9th birthday in 2019. The Offender told police it was in May 2019 but later said it was in late 2018. 7. On this occasion, the Offender told police that he took A, A's brother (born 2012), B and B's brother (born 2009) [3] to Jimmy's Beach for a swim. B was wearing bikini bottoms. When they arrived back at the Offender's house in Bulahdelah, A's brother, B and B's brother played a game on a Playstation 3 in the lounge room while A and the Offender were in the Offender's bedroom together. A was playing a video game on an Xbox 360. A was leaning back against the Offender and had her legs spread. The Offender put his hand inside A's swimmer bottoms and rubbed B's vagina with his fingers. A said, "I don't like that." The Offender stopped and did not touch B's vagina again. These facts constitute Sequence 17. 8. On that same day, the Offender took three photos of A on his Oppo mobile phone. The Offender described the photos to police as: * One photo showing A with the Xbox controller; * One photo showing A with her legs spread; * One photo of A after the Offender pulled her bikini bottoms to the side and took a photo. These facts constitute Sequence 8 (Form 1 matter attaching to Sequence 17). 1. The Offender uploaded those photos to his hard drive and shared them online. He later deleted them off his phone. These facts constitute Sequence 11. 2. Since May 2018 to the time of arrest, the Offender told Police that he touched A's vagina "probably about a dozen times". 3. The Offender told Police that "just whenever I got an opportunity, I'd just touch her." He told Police that all of the other times were "pretty much just the same." He said that he did not ever penetrate A's vagina with his fingers. These facts are described as uncharged. B 1. In late April 2019, B stayed at the Offender's house in Bulahdelah for about three or four nights over the Easter school holidays. A, B's brother and C also stayed with the Offender at that time. B was 3 years old. 2. B's brother and A slept on the lounge. The Offender set up mattresses for B and C on the floor but B ended up in the bed with the Offender. 3. At almost midnight, B was in the Offender's bed with the Offender. B was wearing a "pull up" nappy. The Offender noticed B's nappy was wet and he removed her nappy. The Offender told police, "and then I just started to play with her." The Offender touched B's vagina with his finger. B was facing away from the Offender. These facts constitute Sequence 1 (Form 1 matter attaching to Sequence 2). 4. The Offender's penis became erect and he started to rub his erect penis against her vagina, through her legs. The Offender rubbed his penis against the outside of B's vagina for about 15-20 minutes. The Offender did not insert his fingers or penis into B's vagina. 5. The Offender put a clean pull up nappy on B, went into the bathroom and ejaculated. The Offender told Police that during this, B was not really awake and was sort of dozing in and out. These facts constitute Sequence 2. 6. The Offender told police that "in between doing all that, I just sort of started taking pictures." The Offender told Police he took about 6-7 photos on his Oppo phone which depicted B's vagina and "a couple with my penis rubbing against it." These facts constitute Sequence 9 (Form 1 matter attaching to Sequence 2). 7. The Offender uploaded those photos to his hard drive and shared them online. This constitutes Sequence 12. C 1. About two nights after the Offender sexually touched B, C climbed into bed with the Offender. C was 21 months old. 2. The Offender told Police that he saw C's nappy was wet and he removed it. The Offender touched the outside of C's vagina with his fingers. These facts constitute Sequence 3 (Form 1 matter attaching to Sequence 4). 3. The Offender rubbed his penis on the outside of C's vagina for about 15-20 minutes. The Offender told Police he did not ejaculate, that he realised how wrong it was and put C's nappy back on. 4. The Offender told Police that C wasn't awake and was "sort of in between" [sleep and awake]. 5. The Offender told Police he did not try to insert his fingers or his penis inside C's vagina. These facts constitute Sequence 4. 6. While the Offender was touching C's vagina, he took about eight photos of C with his Oppo brand mobile phone. The Offender spread C's vagina with his finger and took some photos depicting C's vagina and the Offender's finger "not in her vagina but just against it." 7. The Offender also took some photos of his penis rubbing against C's vagina. These facts constitute Sequence 10 (Form 1 matter attaching to Sequence 4). 8. The Offender uploaded those photos to his hard drive and shared them online. He later deleted the photos from his phone. These facts constitute Sequence 13. 9. In relation to A, B and C, the Offender told Police that he would have uploaded "dozens" of images of them to the darknet. 10. On 2 August 2019, A was interviewed by Police. A did not disclose any allegations against the Offender, however she was shown a number of photographs which Police had located on the darknet which did not contain child abuse material and A confirmed that she was the person in the photographs. 11. On 9 September 2019, D provided a police statement which confirmed that her daughters, B and C attended the Offender's house in January 2019 and the Easter School holidays of April 2019. 12. On 11 September 2019, E provided a police statement which confirmed that her daughter, A attended school at Bulahdelah and regularly attends the Offender's home. E confirmed that A stayed at the Offender's home for a couple of nights in January 2019 and in April 2019. E stated that there were many times over the years where the Offender was alone with A. 13. On 11 September 2019, K provided a police statement which police which confirmed that A, B and C stayed at the Offender's house over the January and April 2019 school holidays. D 1. After making the above admissions to police regarding his three step-granddaughters, the Offender made further admissions in his ERISP to Police in relation to his step-daughter, D. Detailed below is the offending which constitutes Sequence 32. 2. The Offender told police that the first time he touched D was in 1995 when she was 8 years old. D turned 9 in November 1995 and turned 10 in 1996. The first time it happened, K was away for the weekend. K would go away regularly on weekends, at least once a month, to see her brother. The Offender told police "I just started touching her". The Offender and D were mucking around when he started to touch D's inner thighs and the outside of her vagina. He touched D's vagina on the outside of her clothing. 3. The Offender touched D in the same way as the first time (touching her thighs and vagina on the outside of her clothing) for a period of about a couple of weeks. 4. In 1995, a couple of weeks after the first time, the Offender was in the lounge room at an address in Taree with D. The Offender put his hand inside D's underwear and started rubbing her vagina. The Offender went into the bathroom and ejaculated. The Offender asked D if she liked it and D said yes. The Offender did not tell D not to tell anyone. The Offender touched D's vagina in the same way for a period of about six months. 5. Towards the end of 1995, the Offender was touching D's vagina one day and he asked her if she could touch his penis. D did not say yes but she let the Offender put her hand on his penis. The Offender put D's hand on his penis and asked D to rub his penis up and down. D rubbed the Offender's penis for about ten to fifteen minutes. The Offender then went to the bathroom and ejaculated. The Offender told Police he went to the bathroom to ejaculate because "I didn't want to scare her". 6. The same thing happened for the next two or three weeks on weekends. The Offender said it happened once per day on the weekends. When asked whether the Offender continued to put D's hand on his penis, he said that towards the end of the two or three weeks, "she was actually taking it herself". Towards the end of the two or three weeks, the Offender ejaculated on D's hand. He told police, "She thought it was pretty gross and um yea" and he said he was sorry to her. The same thing happened for a while. 7. About six or seven months later, in early 1996, the Offender started having penile-vaginal sexual intercourse with D. The Offender told Police that D was "nearly 11", however in early 1996, D was 9 years old. The Offender confirms throughout his interview that the intercourse happened in 1996. The first time it happened was at an address in Taree. The Offender asked D if she wanted to try having sex and told her that he loved her. The Offender told Police that D said yes. The Offender had penile-vaginal sexual intercourse with D in the bed he shared with K. The Offender did not use a condom and he ejaculated on D's belly. The Offender told police that D was hurt when he penetrated her vagina and she cried which made him feel really bad. D had bled onto the towel which the Offender had placed on the bed. The Offender told D that he was sorry and said, "If she didn't want to try it again, that was fine". D didn't say anything. 8. The Offender told Police that the following weekend, he asked D if she wanted to try again and she said yes. The Offender and D were at an address in Taree and K was out visiting her sister. The Offender had penile-vaginal intercourse with D for about fifteen minutes. The Offender ejaculated on D's belly. The Offender said that D "was a little better with it" and that she didn't cry. 9. When asked how many times this happened, the Offender told Police that it happened nearly every weekend until D turned 11 because D had fallen pregnant. However, D was 13 when she fell pregnant and accordingly the Offender had sexual intercourse with D until she was at least 13 years old. When asked how many times the Offender had sexual intercourse with D all up, he said "probably about a dozen times all up". The Offender ejaculated inside D's vagina about four or five times over various time periods. 10. On one occasion, the Offender was having penile-vaginal intercourse with D when he asked D to suck on his penis. The Offender inserted his penis into D's mouth for about ten minutes. He did not ejaculate. D did not like it and the Offender said it only happened once. 11. About two weeks after that, the Offender performed cunnilingus on D and inserted his tongue inside her vagina for about five minutes. D did not like it. 12. The last time the Offender had penile-vaginal intercourse with D was about one week before they found out D was pregnant in about April or May 2000. D was 13. In about May 2000, K noticed that D was putting on weight and took her to the doctor. The doctor did a pregnancy test and the results showed D was 20 weeks pregnant. The Offender told Police that D said a boy from school (PB) was the father of the baby. When Police asked whether the Offender thought the child was his, he said he did not know. The Offender told Police that since the day he found D was pregnant he stopped having sexual intercourse with her and did not talk about it since. 13. The Offender told Police that K did not know that he was having sexual intercourse with D. 14. The Offender told Police that he did not take any photos of D. 15. The Offender then told Police that he has a sexual interest in children, that "I just feel attracted to um young girls" and he had had that attraction since his late teens. He told Police that he had not been abused himself. He told Police that he feels attracted to young girls from the age of 8. When asked how that explains the offences with B and C he said "I don't know. I just, oh God. I just seen an opportunity." He told Police that he does not think children are safe around him. 16. On 10 September 2019, D made a police statement in which she stated that she recalled being sexually assaulted by the Offender on one occasion. 17. D told Police that in 2000 when she was 13 years old, she was home alone with the Offender at their home in Nerong where they were living at the time. The Offender called her into the bedroom that he shared with K and he put D on the bed and took off her pants and underwear. The Offender took off his own pants and underwear, laid on top of her and started to have penile-vaginal sex with her. While the Offender was having sex with her, there was a noise such as a car pulling up or some kids arriving home and the Offender stopped. D and the Offender got dressed and walked out of the room. D was pregnant at the time but she did not know it at that stage. She does not remember whether the Offender used a condom or not. D told police that she did not remember any other times that she was abused by the Offender as she had blocked it out of her memory. 18. D attended upon a doctor in 2000 when her mother noticed her belly was growing. The Doctor did a pregnancy test and an ultrasound which showed D was 20 weeks pregnant. D and her mother both cried and the Offender was dumbfounded. D does not recall the Offender saying anything to her about it. 19. D did not know who the father of the baby was. D told Police that she had been sexually assaulted in early 2000 by PB but said that at the time she had blocked out the incident with PB and the Offender. 20. D's child was born in 2000. D's child is now 19 years old and grew up thinking that PB was his father. 21. On 28 October 2019, Police obtained DNA from D's child, which was sent for forensic examination. The FASS results confirmed that the Offender is the father of D's child's. 22. The agreed facts acknowledged that the Offender provided various ages and dates in his ERISP. [4] In particular they noted that there is often internal inconsistency in relation to some of those ages and dates which call into question the reliability or accuracy of those dates. Examples were provided of the foundational offences referred to in [64]- [66]. Offence – Possess Child Abuse Material 1. In his ERISP, the Offender told Police that he received child abuse material and had possession of other images of child abuse material. The Offender admitted he was the user of the following user names: "GrandDadofsix" and "AusPedo." 2. The Offender told Police that he uses the darknet multiple times a week. The last time he used it was 31 July 2019. The Offender stated that he is the only user of his computer and his phone. He told Police that the images of child abuse material were located on his computer in a hidden folder. 3. At about 2.20pm on 2 August 2019, Police executed a search warrant on the Offender's residence in Bulahdelah and seized a number of mobile phones, a number of cameras, an Asus computer tower, a hard drive, a webcam and a number of USB drives. 4. Police reviewed the hard drives contained on the Offender's Asus computer. Police identified the following material which was saved to the Offender's hard drive: 1. 12 images of B which falls within Category 1 of the Interpol Baseline Categorisation (IBC) of child abuse material; 2. 8 images of C which falls within Category 1 of the IBC of child abuse material; 3. One image of A that falls within Category 1 of the IBC of child abuse material; 4. 6,631 Category 1 images, 4,364 of which were unique; 5. 265 videos, 246 of which were unique; 6. 15,185 images as Category 2 images, 12,355 of which were unique; 7. 108 videos as Category 2, 104 which were unique. 1. Child Abuse Material is classified according to the IBC. The IBC makes reference to activity depicted within child abuse material as follows: 1. Category 1 – An image depicting a real prepubescent child and the child is involved in a sex act, witnessing a sex act or the material is focused/concentrated on the anal or genital region of the child 2. Category 2 – Other child abuse material that is illegal within NSW but do not fit within the Interpol baseline category above 3. Category 3 – Material that is neither illegal nor child abuse material; however, it is of a type that may be of interest from an investigative position 4. Category 4 – Ignorable material that does not fall within any of the other three categories Victim Impact Statement 1. D has provided a victim impact statement to the Court. In that statement, she expresses her many struggles and challenges because of what the Offender has done to her. D states that she has very low self-esteem because of what has happened to her in the past and because of what the Offender has done to her. She states that she is insecure and has been scared of him all her life, she jumps in her sleep and tosses and turns most nights as if she is having a nightmare about it. She states that she jumps when someone goes to touch her face. 2. In sentencing the Offender, I have regard to the Victim Impact Statement in the way provided for in s 30E of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the 1999 Act). The profound impact child sex offences have is well-known, and the Victim Impact Statement confirms this. [5] Nevertheless, it is important that the Court be reminded of the impact. Objective Seriousness State Offences 1. Pursuant to s 25AA of the 1999 Act, the Court is required to sentence the Offender in accordance with the sentencing patterns and practices at the time of sentencing, not the time of the offence. That includes taking into account the aggravating and mitigating factors in s 21A(2) and (3) of the 1999 Act. [6] 2. Before considering individual aspects of the offending, both parties accepted that each of the State offences involving A, B, C and D involved a breach of a positon of trust being an aggravating factor. [7] 3. The Crown did not advance s 21(2)(eb) of the 1999 Act which would in any event add little if anything to the criminality. 4. The Crown submitted that the offending behaviour that is the subject of Sequences 14, 17, 2, 4 and 32 engaged the aggravating factor in s 21A(2)(l) of the 1999 Act (vulnerability by reason of age) but particularly sequences 2 and 4 involving children who were young and in nappies at the time. Section 61M(2) of the 1900 Act (Sequence 14) applied to children under 16 years of age. Section 66DA(a) of the 1900 Act (Sequences 17, 2 and 4) applied to children under 10 years of age. Section 66EA(1) of the 1900 Act (Sequence 32) applied to children under 16 years of age. 5. In assessing the objective seriousness of the individual offending, I have had regard to the age of the victims and their relative vulnerability in the context of the offences concerned as discussed below. I accept the Crown submission that the age of the victim is an important factor in assessing the criminality of the Offender and that generally speaking, the younger the victim the more serious the criminality. [8] However for reasons given below I do not find the aggravating factor established for sequence 17. 6. I would not accept the Crown Submission to the extent it sought to engage the aggravating factor in s 21A(2)(m) of the 1999 Act. Each of the sequences involving A, B, C and D (excepting sequence 18), involved an individual victim. The fact that the offending overall involved multiple victims is a factor to be considered in determining the level of concurrency, accumulation and totality. Sequence 32 by its nature involved multiple acts such that to also find it aggravated on this basis would be erroneous. A Sequence 14 1. The Crown accepted that in relation to Sequence 14, it was at the mid-range of objective seriousness. [9] The Defence submitted that the offending was above mid-range. [10] 2. A was a child of 8 years of age at the time of the offending being in the mid end of the range of under 16 years embraced by s 61M(2) of the 1900 Act. I accept that A was vulnerable thus increasing the objective seriousness compared to a victim in the upper end of that range. [11] The Offender was also A's step grandfather and it is accepted that the offending involved a breach of a position of trust. [12] It occurred as the victim was staying there overnight at the Offender's home. There is no evidence of the duration apart from the nature of the offending as described and the fact that after 'a while' A pushed the Offender away. The agreed facts do not indicate the level of force applied and whether A's action was due the level of any pain or discomfort being experienced. However the touching involved skin on skin contact and rubbing up and down with the Offender's "fingers" although there was no genital to genital contact. The agreed facts indicated that it was the first time it happened to A and there was nothing to indicate any level of planning or threats. Nothing was said by the Offender or A during the offending, although following it the Offender said he was sorry and if she didn't like it to ask him to stop. 3. An offence under s 61M of the 1900 Act covers a broad spectrum of conduct. I have had regard to the features above described noting the considerable significance in regard to the actual character of the assault including the degree of physical contact. [13] I would find the objective features affecting relative seriousness fall around the mid-range. Sequence 17 1. In relation to Sequence 17 both parties accepted that this offending fell above the mid-range of objective seriousness. 2. A was a child of 8 years of age at the time of the offending, however the range of persons embraced by the section is under ten years meaning that at the time A fell in the upper end of the range of an offence where vulnerability is already an element. Accordingly there must be no double counting by engaging the aggravating factor of vulnerability in s 21A(2)(l) of the 1999 Act. [14] 3. The Offender placed his hand inside A's bikini bottoms and rubbed A's vagina with his fingers in the context of taking the photographs of her. The Offender stopped after A told him that she did not like it and he complied and did not touch her again. The level of force used by the Offender is not apparent as the level of any pain or discomfort being experienced by the victim is not clear. The duration can only be determined by the description of the activities. It occurred at the Offender's home in his bedroom with the three children in the house after returning from an excursion from the beach. There was no suggestion that the other children were present at the time of the offending or were aware of it. However, it occurred against a background where each child including A was playing electronic games with only A in the Offender's bedroom. The Offender was her step-grandfather at the relevant time and it is accepted that his actions involved a breach of position of trust being an aggravating factor. [15] 4. Although this was the last occasion the Offender touched A, it was in a context of what proceeded it. It also occurred in the context of what is accepted as facts pertinent to sequences 8 and 11. 5. Consistent with the submission of the parties, I would find the objective features of this offence to fall above an offence in the mid-range of objective seriousness. B Sequence 2 1. In relation to Sequence 2 involving B, the Crown submitted that Sequence 2 fell above the mid-range of objective seriousness. [16] The Defence accepted that it fell within the upper end of the range. [17] 2. B was a child of 3 years of age at the relevant time and was staying at the Offender's home overnight with three other children. Her age was at the lower end of the range of ages embraced by s66DA(a) of the 1900 Act, a feature which increases her vulnerability relative to a child of older age and aggravates the offending. [18] Initially, B was set up to sleep on a mattress with C on the floor but she ended up in the Offender's bed. The Offender observing that B's nappy was wet removed it and then started to play with B's vagina touching it with his fingers. He then rubbed his penis which had become erect against B's vagina for about 15 to 20 minutes. There was no penetration but clearly there was skin on skin contact as described. The Offender replaced her nappy and went to the bathroom to ejaculate. At the relevant time, the Offender was B's step-grandfather and it is accepted that there was a breach of a position of trust being an aggravating factor. [19] 3. I accept that there was no evidence of any threats or instructions. However, I bear in mind the Offender's positon, B's age and the description of her as being awake and sort of dozing off. I accept however that the facts indicate a relative absence of force or violence. 4. Overall, I would accept that the objective factors affecting objective seriousness of the offence are above the mid-range. C Sequence 4 1. The Crown submitted that Sequence 4 fell above the mid-range of objective seriousness. [20] The Defence accepted that it fell within the upper range of objective seriousness. [21] 2. This offending occurred two nights after Sequence 2 was committed and it was similar in nature to that involved in Sequence 2. Although C was a child of 21 months of age at the time. This again brought her at the lower end of the ages of children embraced by s 66DA(a) of the 1900 Act, a matter which increases her vulnerability relative to a child of older age and aggravates the offending. [22] C climbed into the Offender's bed in his home. The Offender observed C's nappy to be wet and proceeded to remove it. The Offender then touched her vagina with his fingers without penetrating it. He then rubbed his penis against her vagina for 15 to 20 minutes and whilst doing so took eight photographs described below before replacing her nappy. He described stopping when he realised it was wrong. At the time C was described as not being awake but sort of in between sleep and being awake. The Offender was C's step-grandfather and it is accepted that the offending occurred whilst he was in a position of trust such that this was an aggravating factor. [23] 3. There was no penetration but clearly there was skin on skin contact as described. 4. Bearing in mind all the features I have referred to, I would accept that these objective features affecting relative seriousness are above the mid-range. D Sequence 32 1. In relation to D, both parties accepted that the offending was above the mid-range of objective seriousness. [24] 2. Section 66EA(1) of the 1900 Act took the following form throughout the entirety of the duration of the offending conduct being : "A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years." 1. Section 66EA(7) of the 1900 Act as it now stands however provides: This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed. 1. However 66EA(8) of the 1900 Act as it now stands provides: A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed. 1. The Offender has pleaded guilty to s 66EA(1) of the 1900 Act as it now stands and is to be sentenced on that basis. It follows that I do not accept the Defence submission that the maximum penalty applicable for the offence to which the Offender has entered his plea is 25 years as opposed to life imprisonment. [25] Nevertheless both parties accepted that the relevant principles as expressed in Burr v R [26] remain relevant to the objective seriousness for the criminality of the current offence. [27] 2. In Burr v R Johnson J stated that relevant factors to the consideration of objective seriousness for an offence under s 66EA of the 1900 Act as it stood prior to 2018 amendment included: [28] "(a) the number of "sexual offences" (as defined in s.66EA(12)) which were committed on separate occasions by the offender against the victim - the minimum number of ingredient offences to constitute a s.66EA offence was three and the greater the number of offences beyond that threshold, the more serious the s.66EA offence will be; (b) the nature of the sexual offences committed by the offender against the victim - in this case, each of the 12 offences was an offence under s.66C(3) Crimes Act 1900 for which the maximum penalty was imprisonment for 10 years - ……; (c) the age of the victim at the time of the ingredient offences - "child" is defined in s.66EA(12) as meaning a person under the age of 18 years and the younger the victim was at the time of the ingredient offences, the graver the s.66EA offence will be - ……; (d) the period of time during which the ingredient offences were committed against the victim; (e) the age of the offender at the time of the commission of the ingredient offences against the victim and the age differential between the offender and the victim during the relevant period; (f) the context in which the offender had access to the victim to commit the ingredient offences over the period of time which constituted the s.66EA offence - if the context involves the offender and the victim being in a family or quasi-family setting, which has a capacity to influence the power differential between the two persons and the susceptibility or vulnerability of the victim, this will elevate the objective seriousness of the s.66EA offence. Other factors may bear upon an assessment of the objective seriousness of a s.66EA offence depending upon the circumstances of the particular case." 1. In light of the internal inconsistencies in the Offender's ERISP interview referred to in the agreed facts the Crown in its amended written submissions accepted that D was a child at the relevant time of the offending, being between 10 and 13 years of age and that one of the offences involving sexual intercourse resulted in pregnancy. Both parties accepted that the following foundational offences made up Sequence 32: [29] Age Offence Allegation Max 10 Section 61M(1) Touched vagina outside clothes 7 10 Section 61M(1) Touched vagina inside clothes 7 10 Section 61M(1) Putting her hands on his erect penis 7 10 Section 61M(1) She placed her hand on his erect penis 7 10 Section 61M(1) Ejaculating onto hand 7 10 Section 66C(2) Penile vaginal intercourse 10 10 Section 61M(1) Ejaculating onto stomach 7 10 Section 66C(2) Penile vaginal intercourse 10 11 Section 66C(2) Penile vaginal intercourse 10 12 Section 66C(2) Penile vaginal intercourse 10 13 Section 66C(2) Penile vaginal intercourse 10 13 Section 66C(2) Fellatio 10 13 Section 66C(2) Cunnilingus 10 1. Despite the period particularised in the charge the Crown accepted that the period over which the foundational offences occurred was one of approximately 3 and a half years between November 1996 and May 2000. [30] I have also borne in mind the features of the foundational offences and likely sentences under the provision that creates them. [31] The Offender was born in 1968 and there was an 18 year age difference with D. 2. The context in which the Offender had access to the victim was through a family relationship. It is accepted in this respect that the offending involved a breach of a position of trust. [32] It is further accepted that the injury to D was substantial bearing in mind that one of the acts resulted in the birth of a child to D. [33] The Defence accepted that the victim was vulnerable in that she was very young. [34] In this respect, I note that the ages embraced by the section is under the age of 16 years and her age at the time of the offending was as described above. 3. Overall I would accept that the objective seriousness of this offence falls above mid-range. Sequence 18 1. In assessing the objective seriousness of these sequences, I bear in mind the list of potentially relevant matters referred to in R v Hutchinson [35] and R v Leeuw. [36] 2. The Defence concedes that child abuse material was extremely voluminous but that apart from bespeaking the objective seriousness of the offence it renders it impossible to summarise the content of the material. I accept that this is so. There were however a large number of category 1 and 2 images which was a significant portion of each of which were unique. There was no description of the 265 videos apart from 246 being unique and on the state of the agreed facts, I can only conclude that this number included the 108 videos in category 104 of which were unique. As for the balance of the videos, I cannot be satisfied beyond reasonable doubt that these fell into any category as it has not been described as such. 3. In any event the Defence accepts the following: 1. Actual children were used in the creation of the material. 2. The material included a limited number of images of the Offender's step grandchildren. The description of the material does not indicate cruelty or physical harm being occasioned although the Defence accepted that the images were degrading. Nothing else can be said about the other material so far as the question of cruelty or physical harm is concerned. 3. The number of images and items is as described above. It is not possible to determine on the state of the agreed facts the number of different children used. 4. The Offender's purpose in relation to the possession of the material was for his own sexual gratification whether in and of itself or in order to be swapped for other images from which he would then obtain gratification. 5. The acquiring of the material via "dark web" and its storage in a hidden folder on the Offender's computer did involve some sophistication. 6. The Offender was involved in a collaborative network of like-minded persons whereby material was swapped between them. 7. There was no evidence of any risk of the material being seen or acquired by vulnerable persons particularly children. 8. There is nothing to suggest the material was being seen or acquired by persons susceptible to act in any depicted manner. 1. The Defence submitted that there were no other aggravating or mitigating factors going to the objective seriousness of the offending and that it fell within the "upper" range of seriousness. [37] I would accept this is so. Commonwealth Offences 1. In relation to Sequence 11, 12 and 13 the Crown submitted that the offending was at the mid-range of objective seriousness and the Defence submitted that they fell around the mid-range. [38] 2. As these are Commonwealth offences, the Court is required to take into account such of the matters set out is s 16A(2) of the Crimes Act 1914 (Cth) (1914 Act) as are relevant and known to the Court. I accept that none of the factors therein mentioned have application to the Court's assessment of the objective seriousness of these offences above and beyond the nature and circumstances of the offences as set out is s16A(2)(a) of the 1914 Act. In assessing objective seriousness, I bear in mind the list of potentially relevant matters referred to in R v Hutchinson [39] and R v Leeuw. [40] 3. In each case: 1. Actual children were used in the creation of the material. 2. The material included material of the step grandchildren of the offender which were created by the Offender himself. I accept that none of the images involved actual intercourse, cruelty or actual physical harm. A was 8 years of age, B was aged 3 years of age and C was aged 21 months. In the case of A one of the three images including one after he had pulled her bikini bottom to the side. In the case of B the images depicted her vagina and one with the Offender's penis rubbing against it. In the case of C the images depicted her vagina and some photos of the Offender's penis rubbing against her vagina. 3. The number of images created in relation to each child were relatively small being 3 in the case of A, 6 or 7 in the case of B and 8 in the case of C. 4. The Offender's purpose was for his own sexual gratification whether in and off itself or by the act of distribution in order to receive other material in return from which he would hen obtain gratification. 5. The distribution of the material via the "dark web" involved some degree of sophistication and potentially involved the material being viewed by a large number of people. 6. The Offender was involved to some degree in a collaborative network of likeminded persons whereby the material was swapped between them 1. Section 417.19 of the 1995 Act covers a broad spectrum of conduct and material. The conduct in each instance involved distribution of a limited number of images that the Offender created to be distributed to a potentially large audience. In this respect it is relatively more serious than simply accessing similar material. 2. Overall I would assess sequences 12 and 13 as more serious than sequence 11 as there were more images, relatively more explicit and the victims were younger and relatively more vulnerable. I also bear in mind the context in which the offending took place. 3. Taking all features into account, I would accept that each sequence falls within the mid-range of objective seriousness. Subjective factors Circumstances of the Offender 1. The Offender was born in 1968 and is presently 52 years of age. 2. The Offender participated in a psychological assessment with Dr Richard Furst Forensic Psychiatrist on 14 September 2020. In a report dated 9 October 2020, Dr Furst records that the Offender was born in Maitland/Kurri Kurri. He completed his education to Year 12 with no indication of learning difficulties or other childhood psychiatric or conduct problems. 3. The Offender's family moved to Wingham after he completed high school. He worked in pest control and a window installation firm in his late teens/early 20's. He was unemployed for a period in the early to mid-1990's and then worked at a timber mill in Bulahdelah between 1996 and 2001. He worked in the same timber mill between 2005 and 2009 and again from 2013 until his arrest on 2 August 2019. 4. He commenced living with D's mother from around 1989-1990. She had two daughters from a previous relationship being D and E. D's mother and the Offender had four sons together during the latter's 20's and 30's. 5. The Offender from his early 20's would drink heavily and at one point it appears there was a notification that the children were at risk. The Offender and D's mother were referred for counselling. Thereafter the Offender's drinking was described as easing off in his early 30's and he has only been drinking on a social basis over the last 20 years. The Offender also informed Dr Furst of some prior cannabis abuse but not smoking much at all over the last 15 years. Discount – Plea of Guilty and Ellis 1. The Crown accepts that pleas to each offence were entered at the earliest opportunity and accordingly the Offender is entitled to a 25% discount in respect of the State offences. [41] 2. The R v Thomson and Houlton guideline does not apply to sequences 11, 12 and 13 which are Commonwealth matters. I bear in mind however the fact of the pleas, the fact that they were entered at the earliest opportunity and that these matters have resulted in the benefit to the community and victims. Taking into account the utilitarian value of the pleas I accept that a discount should be applied of 25% in respect of these matters. Both parties accepted that this was an appropriate course to follow. [42] 3. In respect of assistance, the Crown and Defence accepted that the Offender was entitled to a substantial discount in relation to sequence 14. [43] 4. The Crown and Defence accepted that no discount for assistance is to be afforded in respect of Sequence 17. [44] 5. In respect of sequences 2 and 4 the Crown and Defence accepted that the Offender was entitled to a substantial discount. [45] 6. In respect of sequence 32 the Crown submitted that a lesser discount was appropriate than other counts as the offending was potentially detectable. This was contested by the Defence. [46] 7. In respect of sequence 18 both parties accepted that no discount for assistance was appropriate. [47] 8. In assessing the appropriate discount for the State offences, I bear in mind the contents of s 23 of the 1999 Act. In each of sequences 14, 2 and 4 the Offender's assistance was significant and useful. As it forms the basis of the agreed facts it can be accepted as truthful, complete and reliable in the information that he provided. There is no suggestion of any assistance of the Offender having anything to gain by reason of the assistance. The Offender's account was volunteered to police when he was being investigated in relation to another matter and at a time when the relevant offending was not known. Furthermore the assistance relates to the offences for which the Offender is to be sentenced as opposed to separate offending from that which the Court is asked to take into account. 9. In assessing the discount that the Offender is entitled to receive, I am mindful of the need to ensure that the lesser penalty that is imposed under the section in relation to each offence is not unreasonably disproportionate to the nature and circumstances of the offence. Whilst other principles of sentencing do not limit the discount that may be given, the requirement of s 23(3) of the 1999 Act, is such that it would not generally be met by allowing a combined discount of greater than 50%. [48] 10. In each instance the offending would not otherwise have come to light. In particular the photographs of B and C of themselves would not have brought the offending to light. The photographs of A would not have resulted in sequence 14 coming to light. I am mindful of significant discounts for assistance in given cases such as Panetta v R [49] and more recently in Buckely v R. [50] In Panetta the assistance discount for unsuspected and unknown guilt was 50% although the combined discount with a late plea was ultimately determined at 50%. In Buckley the offender made full admissions in respect of five armed robberies where it was accepted that the only evidence was provided by himself. This followed his apprehension in respect of other matters. The plea was early and the assistance was found to be very substantial in nature. There was some evidence that his assistance led him to be assaulted in custody and subsequently placed in segregation. A combined 50% discount was ultimately allowed. 11. In the circumstance of the present case, I am satisfied that a combined discount for plea and assistance of 50% is appropriate for each of sequences 14, 2 and 4. 12. I accept that no assistance discount is appropriate in relation to sequence 17 although the Offender's admissions can appropriately be taken into account in the context of his remorse. This corresponds with the submission of the parties. 13. In respect of sequence 32, the Crown argued that the discount would not be as substantial as a child was born as a result of the offending and the DNA test would prove that criminal offences were committed because the victim had to be under 16 at the time the child was conceived. The Crown accepted that police were not aware of the criminality and that when D was spoken to what she told police was different to what the Offender stated with the latter being much more frank in relation to the offending. The Crown argued that the Offender was entitled to a discount that would be still significant but not as significant as sequences 2 and 4. 14. The Defence submitted that in relation to sequence 32, while it's true that a DNA test could have been and was ultimately used to confirm the paternity of the child, absent the admissions of the Offender there's no reason to believe that police would have undertaken that testing. This is particularly given that on the first occasion that they spoke to D she made no disclosure in relation to the Offender and even when his offending against her was specifically raised with her by police she made reference to only one occasion of intercourse with the Offender and was of the opinion that she was already pregnant to someone else. [51] 15. I accept the Defence submission. I have regard to the matters in s 23 of the 1999 Act and in particular the significance and usefulness of the Offender's assistance. Whilst some question as to the reliabilty of the Offenders admissions arises, the interview forms the basis on which the Offender is to be sentenced. I note that no other benefit has been derived. 16. Bearing in mind the constraint in s 23(3) of the 1999 Act, I would allow a combined discount for plea and assistance for sequence 32 of 50%. 17. In respect of Sequence 18, I accept that no assistance discount is appropriate, although I note the Offender's admissions and cooperation particularly in the provision of his password and I take this into account in the context of his remorse. 18. In relation to the Commonwealth sequences, the Crown (noting that there was no provision akin to s 23 of the 1999 Act) nevertheless accepted that discounts for assistance were appropriate nonetheless. Section 16A(2)(h) of the 1914 Act (Cth) specifically provides for the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences to be taken into account. I accept that the practical effect is the same as the State regime. 19. In the case of Sequence 11, the Crown argued that a lower discount was appropriate in light of the advanced stage of the Police investigation as disclosed in the agreed facts. The Defence accepted this submission. [52] 20. In this case, bearing in mind the assistance was of a relatively lesser value, I would allow a combined discount for pleas and assistance of 35%. 21. In relation to the Offences against B and C (Sequences 10 and 13), the Crown accepted that the photographs in the Commonwealth sequence did not make it clear that it was the Offender. The Crown further accepted that for these offences the discount would be substantial. It pointed out that although the Offender has made admissions and police did not seek to prove who were the subject of the images it would not have been apparent who the images would otherwise have been of. [53] The Defence accepted this submission. [54] 22. In the circumstances, I would allow a combined discount of 50% for each of sequences 10 and 13. Antecedents 1. The Offender has previous convictions in 2011 for disseminating or possess child pornography, using a carriage service to access child pornography and using a carriage service to make child pornography. He served concurrent terms of imprisonment amounting 2 years and 3 months before being released on a recognisance release order under s 20(1)(B) of the 1914 Act . In 2017, the Offender was convicted and fined $500 for failing to comply with reporting obligations. 2. The Crown did not submit that these were aggravating matters to be taken into account on sentence under s 21A(2)(d) of the 1999 Act or Veen v R [No 2]. [55] 3. The Defence pointed out that the convictions in 2009 post-dated sequence 31 but otherwise accepted that the Offender's antecedents did not entitle him to leniency. [56] 4. I accept the Defence submission and to this end have had not had regard to the agreed facts relevant to past offending contained in the Crown sentence bundle. [57] Remorse/Contrition 1. In the course of his ERISP, the Offender gave what the Crown accepts amount to frank admissions as to his offending against the four victims. [58] 2. The Offender also informed police that he used his phone and internet to upload and download child abuse material. He identified each of the victims. The Crown conceded that the Offender's admissions included providing a password that assisted police in respect of Sequence 18. [59] That password was said to have assisted police in accessing a hidden folder on the Offender's hardrive. 3. A psychologist's report from Dr Richard Furst dated 9 October 2020 records that in an assessment conducted on 14 September 2020 the Offender advised Dr Furst: 1. In relation to A, B and C he stated that his motivations for the offending was his enjoyment. 2. He uploaded photos so he could share them and liked the comments he was getting. 3. The report records that he was disgusted and horrified about what he had done. 4. In relation to D he was disgusted by his behaviour and feels bad about "taking away her childhood." He accepted responsibility for abusing her and for her falling pregnant at the age of 13 years as a consequence of the ongoing sexual abuse. 5. In relation to the large amount of child abuse material found on his computer/storage devices the Offender stated that he downloaded it for enjoyment. 6. He acknowledged that he was sexually attracted to female children the optimal age of attraction being between 8 and 12 years which was described as the prepubescent period and according to Dr Furst was consistent with a paedophilic disorder 1. I accept that the Offender's admissions are such that he has accepted responsibility for his actions as evidence by those admissions, assistance and his plea. Although the evidence is somewhat limited, I am overall prepared to accept that he has acknowledged the injury, loss or damage created by his actions. I am in the circumstances satisfied that remorse has been established pursuant to s21A(3)(i) of the 1999 Act as has contrition pursuant to s16A(2)(f) of the 1914 Act (Cth) and take this into account on sentence. Rehabilitation 1. Following his previous offending, the Offender was referred to a counsellor as a condition of his parole supervision, engaging in psychological treatment and counselling. He completed 9 out of 10 planned sessions with his psychologist Rudd De Bakker and did not receive any further treatment after those sessions. 2. Dr Furst recorded that at the time the Offender engaged in counselling in 2013 his counsellor was unaware of the persistent sexual abuse of D as those events had not come to light. 3. Dr Furst opined that the Offender met the criteria of paedophilic disorder according to DSM-5 diagnostic criteria. He described this as a paraphilia involving intense and recurring sexual urges towards and fantasies about prepubescent children that have either been acted upon or cause the person with the deviant attraction distress or interpersonal difficulties. Given that the Offender was in a long term de facto relationship, the paedophilic disorder was classified as non-exclusive. 4. Dr Furst states that the Offender is at significantly elevated risk of reoffending compared to the average sex offender in NSW. He recommended that the most effective treatment would be prescription of anti-libidinal medication in order to target deviant sexual arousal. Whilst he opined that medications tends to be much more specific and effective that psychological or group based sex offender treatment programmes, he saw some benefit in such programmes as a means of assisting him to further explore reasons behind the offending and sexual deviance and to assist him in developing more effective adaptive method of achieving sexual relief without exploiting and or victimising children in the future. 5. The Offender is noted to remain subject of the child protection register obligations by virtue of the 2011 child abuse material conviction. 6. The Crown drew attention to the lengthy period over which the offending occurred accepting that on the date range most favourable to the offender is as indicated above with offences against three of the four victims occurring after the Offender received a custodial sentence in 2011 and after receiving counselling as a condition of parole in 2013 whilst on the Child Protection Register. [60] 7. Overall I accept Dr Furst's assessment that the Offender is at elevated risk of reoffending. I accept that the treatment and programmes he has proposed would if implemented have potential to mitigate that risk. Although there is no direct evidence as to the Offender's willingness to engage in the treatment and programmes proposed I note that he does have insight into his offending and has in the past engaged with a counsellor. 8. However, overall his prospects of rehabilitation must remain guarded. [61] SENTENCE 1. The Offender has been in custody since 2 August 2019. I propose to commence the sentence from date. 2. Pursuant to s33 of the 1999 Act in sentencing the Offender, I take into account the matters of three form 1's as follows: 1. In respect of Sequence 2, sequences 1 and 9 2. In respect of Sequence 4, sequences 3 and 10 and 3. In respect of Sequence 14, sequences 15 and 16. 4. In respect of Sequence 17, sequence 8 1. I do so in accordance with Attorney General's Application under s 37 of the Crime (Sentencing Procedure) Act 1999 No1 of 2002 [62] giving greater weight to personal deterrence and retribution. 2. In doing so I have borne in mind that Sequence 1 and 9 coincided with Sequence 2. Sequence 3 and 10 coincided with Sequence 4. Sequences 15 and 16 both occurred on the same occasion although not on the same occasion as sequence 14. Sequence 8 occurred at around the same time as sequence 17. 3. In sentencing the Offender, I have taken into account the maximum penalties in each case together with the standard non-parole periods applicable as earlier described. For sequence 32, I have also borne in mind the requirements of s 66EA(8) of the 1900 Act as earlier referred to. 4. Specifically in relation to the offences that are the subject of S61M(2) of the 1900 Act, I have had regard to the curious temporal relationship between the head sentence and standard non-parole period and the need to apply proper consideration to each. [63] 5. In sentencing the Offender, I have regard to the purposes of sentencing in s 3A of the 1999 Act and s 16A of the 1914 Act (Cth). 6. I propose to proceed by way of aggregate sentences. In doing so I have been careful not to erode the discounts although the totality principles will take account of the discounted sentences. Appropriate regard must also be had to principles of concurrency and accumulation and noting the common and distinct features in offending particularly the victims in the Commonwealth and State sequences. 7. In respect of the Commonwealth matters, I would indicate the following terms: Sequence 11 (35 % discount) 2 years; Sequence 12 (50 % discount) 2 years; Sequence 13 (50% discount) 2 years. 1. I would set an aggregate sentence of 3 years. I would commence the aggregate sentence on 2 August 2019 and it will expire on 1 August 2022. 2. Noting that the Commonwealth and the State offending had common features, I would commence the State sentence from 2 August 2021. I would decline to set a recognizance release order pursuant to s 19AC of the 1914 Act (Cth) 3. In respect of the State matters, I proceed by way of aggregate sentence and record the following indicative sentences: Sequence 14 (50% discount) 3 years with a non-parole period of 2 years and three months; Sequence 17 (25% discount) 3 years and 9 months years with a non-parole period of 2 years and 9 months; Sequence 2 (50 % discount) 3 years with a non-parole period of 2 years and three months; Sequence 4 (50 % discount) 3 years with a non-parole period of 2 years and 3 months; Sequence 32 (50% discount) 9 years; Sequence 18 (25% discount) 2 years and 3 months. 1. I would set an aggregate term for the State offences of 15 years commencing on 2 August 2021 and expiring on 1 August 2036. 2. The Defence sought no finding of special circumstances accepting that the term of imprisonment would enable a sufficiently long enough period of parole. Nevertheless, I would find special circumstances in order to achieve the ratio otherwise provided for in s 44 of the 1999 Act in light of the fact that the State sentence partly accumulates on the fixed term Commonwealth sentence. 3. Accordingly the State sentence is to comprise a non-parole period of 10 years and 9 months commencing 2 August 2021 and expiring on 1 May 2032 together with an additional term of 4 years and 3 months from 2 May 2032 to 1 August 2036 during which the Offender is eligible to be released to parole. 4. The Offender's earliest release date is 1 May 2032. ********** Endnotes 1. The offending falls in the period prior to the 2018 amendments. See: Burr v R [2020] NSWCCA 282 at [100]-[101] (Johnson J, with Leeming JA and Rothman J agreeing); Eacott (a pseudonym) v R [2019] NSWCCA 158 at [2] (Leeming JA, with Ierace J and Hidden AJ agreeing). 2. Exhibit 2 – "ERISP". 3. Also C's brother. 4. See Exhibit A1 amendment to Agreed Facts which inserted [34A]. 5. R v Gavel (2014) 239 A Crim R 469 at [110]; R v Nelson (2016) NSWCCA 130 at [17]-[22]. 6. R v Catell [2019] NSWCCA 297 at [103]-[111]. 7. s 21 A (2) (k) of the 1999 Act. 8. R v T (1990) 47 A Crim R 29 at 30; R v PWH (unrep, 20/2/1992, NSWCCA); R v BJW (2000) 112 A Crim R 1; Shannon v R [2006] NSWCCA 39. 9. Crown written submissions at p10. 10. Defence written submissions at [18]. 11. s 21A(2)(l) of the 1999 Act. 12. s 21A(2)(k) of the 1999 Act. 13. R v PGM [2008] NSWCCA 172 at [31]. 14. R v JDB (2005) 153 A Crim R 164; R v Boulad [2005] NSWCCA 289 at [21]. 15. s 21A(2)(k) of the 1999 Act. 16. Crown amended written submissions at p 10. 17. Defence written submissions at [22]. 18. s 21A(2)(l) of the 1999 Act. 19. s 21A(2)(k) of the 1999 Act. 20. Crown amended written submissions at p11. 21. Defence written submissions at [22]. 22. s21A(2)(l) of the 1999 Act. 23. s 21A (2)(k) of the 1999 Act. 24. Crown amended written submissions at p 10 and Defence written submissions at [9]. 25. T 9.8-13. 26. [2020] NSWCCA 282. 27. Crown amended submissions at p5-6 and Defence written submissions at [3]-[6]. 28. [2020] NSWCA 282 per Johnson J (with whom Leeming JA and Rothman J agreed ) at [106]-107]. 29. Crown amended submissions at p11 and Defence submissions at [6]. 30. Crown amended submissions at p6. 31. ARS v R [2011] NSWCCA 266. 32. s 21 A(2)(k) of the 1999 Act. 33. s 21 A (2) (g) of the 1999 Act. 34. s 21 A(2)(l) of the 1999 Act. 35. [2018] NSWCCA 152 at [45]-[46] referred to Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. 36. [2015] NSWCCA 183 at [70]-[72]. This passage is referred to in R v Freedman [2017] NSWCCA 201 at [77]. 37. Defence Written Submissions at [26]. 38. Crown Written Submissions at p 10-11 and Defence Written Submissions at [31]. 39. [2018] NSWCCA 152 at [45]-[46] referred to in Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. 40. [2015] NSWCCA 183 at [70]-[72]. This passage is referred to in R v Freedman [2017] NSWCCA 201 at [77]. 41. S 21A(3)(k) and 22 of the 1999 Act. See R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCA 309. 42. T 5.46-6.1. 43. T 13.11-15. 44. T 13.26 and 16.10-.25. 45. T 16.43-17.6. 46. T 16.47-17.6. 47. T 16.50-17.6. 48. Buckely v R [2021] NSWCCA 6 at [85]. 49. [2016] NSWCCA 85. 50. [2021] NSWCCA 6. 51. T 15.28-47. 52. T 16.27-41. 53. T 14.34-15.22. 54. T 15.26-28. 55. (1998) 164 CLR 465. 56. s 21A(3)(e) of the 1999 Act and s16A(2)(m) of the 1914 Act. 57. Exhibit A tab 8. 58. Exhibit 2 – ERISP transcript. 59. T 14.18-30. 60. Crown submissions at p20. 61. s 21A(3)(h) of the 1900 Act and s16A(2)(n) of the 1914 Act. 62. (2002) 56 NSWLR 146; [2002] NSWCCA 518. 63. AK v R [2016] NSWCCA 238; Corby v R [2010] NSWCCA 146. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2021