District Court New South Wales Medium Neutral Citation: R v Lawson [2021] NSWDC 245 Hearing dates: 13 May 2021 Decision date: 10 June 2021 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Non-custodial and custodial sentences; for orders see [108] Catchwords: Historical sex offending as minor and youth. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Fisher v R; R v Fisher [2021] NSWCCA 91 KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 Mill v R (1988) 166 CLR 59 R v Daley [2010] NSWCCA 223 R v Eckersley [2021] NSWSC 562 R v Grube [2005] NSWCCA 140 R v Todd (1982) 2 NSWLR 517 R v Windle [2012] NSWCCA 222 Tammer‑Spence v R [2013] NSWCCA 297 Category: Sentence Parties: Director of Public Prosecutions (Crown) Robert Lawson (Offender) Representation: Counsel: G Harrison (Crown) R Rajalingam (Offender) File Number(s): 19/18000 Publication restriction: S 578A of the Crimes Act prohibits publication of any matter that identifies the victims of the offences remarks on sentence 1. The offender pleaded guilty to two counts on an Indictment as follows: Count 1 – between 28 July 1981 and 28 July 1983, at North Parramatta, in the State of New South Wales, did have sexual intercourse with GL, without the consent of GL, knowing that she was not consenting. Count 2 – between 1 January 1986 and 9 February 1988, at Telopea, in the State of New South Wales, did have sexual intercourse with JF, without the consent of JF, knowing that she was not consenting. 1. Both counts are offences pursuant to s 61D(1) of the Crimes Act 1900. The maximum penalty proscribed is 8 years imprisonment and there is no Standard Non-Parole Period in respect of each offence. 2. In addition, the offender has asked to be taken into account on a Form 1, attached to Count 2, an offence of indecent assault, knowing no consent given, an offence pursuant to s 61E(1) of the Crimes Act 1900 (Sequence 10). The offender has admitted his guilt in respect of that matter and asked that it be taken into account on sentence. 3. The offender was arrested on 6 February 2019 and was in custody from 6 February 2019 to 13 August 2019, a total of 188 days. The sentence hearing 1. The sentence hearing took place on 13 May 2021. The Crown Sentence Summary became Ex A. It included a Statement of Agreed Facts which may be summarised as follows. 2. The offender was born in July 1966. He was one of nine children and the victim in each count, GL born April 1963, and JF born October 1961, were his sisters. Two of the offender's older brothers, Alan and Wayne Lawson, also sexually abused the victims. 3. The victim in the Form 1 offence of indecent assault, was KR, the step‑daughter of the offender's brother Wayne Lawson. KR was also sexually abused by Wayne Lawson. 4. Count 1 concerned an occasion between 1981 and 1983 when the offender was 15-17 years of age, and he was living with his brother Wayne Lawson at North Parramatta. GL came to visit and stayed for three nights, during which time, JF visited with her partner, all of whom were drinking in the kitchen. The offender was given beer to drink and became very drunk. An argument broke out between Wayne Lawson and GL, which escalated into a fight in which punches were thrown. JF and her partner eventually left and GL went to bed on a mattress in the lounge room. Her son, JH, was sleeping next to her. GL was wearing a singlet top, tights and underpants. When she woke up in the morning, GL realised she was completely naked with only a sheet over her. The inside of her vagina felt wet to touch and her false teeth had been removed and were on the ground beside her. She found her clothes tucked underneath the end of the mattress. 5. As GL stood up to get dressed, she felt something oozing out of her vagina, similar when a male ejaculated inside her during unprotected sexual intercourse. She immediately went to the toilet and wiped her vagina with toilet paper. She saw semen on the toilet paper and also on the inside of her underpants. Her vagina felt swollen and inflamed. 6. During the night, the offender had come into the room and had penile/vaginal intercourse with GL whilst GL was asleep, and she did not consent to it. She later confronted Wayne Lawson and the offender about what happened. Wayne Lawson denied it and the offender said, "I dunno", and left via the front door. GL was 18-20 years of age at the time. 7. In or around 1999, GL was living at Kings Beach, Queensland, and was visited by the offender at the apartment she was living in with her de-facto partner. She was 36 years of age. On an occasion when he visited her, the offender said to GL: "Remember that time in Parra when ya woke up with no clothes on and no teeth?" GL replied: "Yeah, it was Darcy [Wayne Lawson] wasn't it? The offender replied: "No, it was me. I've got to tell you the truth because it was me … I just stood there and looked at you first because I wanted to see you naked, but then I did it. I'm really sorry, I didn't know what I was doing." 1. GL started crying hysterically and told the offender she wanted to kill him for what he had done. He was told to leave and before doing so said, "I'm sorry sis! I'm sorry sis!" 2. Count 2 concerned an occasion in 1986 or 1987 when JF lived with her partner and son at Wayne Lawson's home in Telopea. One Saturday, the offender visited and stayed the night. All the family were heavy drinkers and JF, Wayne Lawson and their partners, together with the offender, had been drinking most of the day. During the evening, JF fell asleep on a couch in the lounge room. She woke up in the middle of the night and felt an erect penis inside her vagina. At first she thought it was her partner, however, she opened her eyes and saw the offender on top of her. The offender immediately jumped off her and as he did so, JF felt an erect penis slide out of her vagina. She became hysterical and shouted out for her partner. He ran into the lounge room and JF said words to the effect of: "He was just lyin' on top of me! Robert was touching me! Robert was on me! He's touched me that fucken, he tried to stick it in me." The offender said words to the effect of: "I'm sorry! I'm sorry! I didn't know where I was! I didn't know what I was doing! I was just too pissed! I'm sorry!" He then ran out of the house. 1. JF was 24-26 years of age and the offender was 19-21 years of age at the time. 2. Both GL and JF made disclosures to their mother some years after the events that they had been sexually abused by their brothers, including the offender. Both were asked not to do anything until she died and that she didn't want to know anything more about it. 3. The Form 1 offence of indecent assault occurred between 1983 and 1985 when the offender visited Wayne Lawson's home at North Parramatta for a family celebration. Wayne Lawson and his partner, Donna Howie, lived with Ms Howie's daughter, KR, who was 7-10 years of age. At the time the offender was 16-19 years of age. KR had given up her bed for the offender to sleep in, and she was sleeping in a fold-out bed in the lounge room. 4. During the night, the offender crawled over to KR's fold-out bed on his hands and knees. He moved on top of KR and put a hand over her mouth. KR could not recall what the offender did to her, but she felt wet around her genitals, and the offender pulled off his t-shirt and wiped her vagina. He then put an index finger to his lips and said, "shhh" before leaving. 5. In April 2017, GL and JF provided police with statements in relation to the physical and sexual abuse they suffered at the hands of their brothers, Alan, Wayne and the offender. On 5 February 2019, the police successfully sought the extradition of the offender from Queensland to New South Wales and on 6 February 2019 he was arrested and placed in custody. He declined to participate in an electronically recorded interview. 6. Exhibit A also included the criminal antecedents of the offender. They included an offence of malicious injury in 1984, for which he was fined $200 and ordered to pay compensation of $140. 7. In Queensland, the offender had been convicted of the following offences: 7 February 1989 – three offences of stealing, wilful and unlawful damage to property for which he was ordered to serve community service and make restitution. 6 September 1999 – DVA breach of condition re release from custody and wilful destruction of property. 7 June 2004 – indecent treatment of child under 16 with circumstance of aggravation for which he was imprisoned for 12 months, suspended for three years after serving three months. 29 April 2008 – failure to comply with reporting condition 9 October 2012 – being drunk in a public place 27 November 2012 – breach of domestic violence order January 2013 – assault occasioning actual bodily harm for which he was sentenced to 6 months imprisonment 20 March 2014 – possess utensils or pipes. 1. The offender was also convicted in the ACT Magistrate's Court on 21 September 1988 of theft, for which he was fined. The offender's evidence 1. The offender tendered a bundle of sentence material which became Ex 1. It included nine documents which are referred to as Ex 1.1 to 1.9. 2. Exhibit 1.1 is a report from Ms L Zipparo, clinical neuro-psychologist, who interviewed the offender by telephone over two days for a period of four and a half hours in total. Under the heading "Personal Background", Ms Zipparo set out the offender's life history. He was one of nine children and had been born with an identical twin who died at birth. His father was a chronic and violent alcoholic of whom the children lived in fear because of extreme violence, mainly perpetrated on their mother. The offender reported the only happy time of his childhood was when he was 10 years old and he was taken by his mother, with three of the other younger children, to Queanbeyan, where they lived for three years. Otherwise, he described a childhood in which he was deprived and neglected. His mother worked all day to provide for her children and he was left to fend for himself. His older brother, Wayne, who was eight years his senior, became a father figure to him, and whilst he trusted Wayne, Wayne started sexually abusing him from about age five. The first occasion occurred when he was having a bath and his brother came in and taught him how to fellate Wayne, who then "urinated" in his mouth. At age six or seven Wayne Lawson taught him to sniff petrol and thereafter regularly gave him alcohol and different types of drugs. Wayne also exposed him to pornographic material, including with bestiality content and as a child he established a routine of sleeping with a comfort pillow to help him feel safe. He described his brother Wayne as stealing his "entire life". "He mentally tortured me to keep me quiet. He was the only father figure I had. I trusted him and he took everything from me". 3. The offender reported that the sexual assaults stopped when he was aged 15, when he left and went to live with his sister Pamela. The offender described the family gatherings as alcohol and drug fuelled events which inevitably ended in "huge fights". One sister was a drug dealer who provided him with prohibited drugs when he was a child. 4. The offender disclosed Wayne Lawson's abuse to his mother when he was around 18 years old. He reported that he made three attempts to report the abuse to police over the years "with no outcome". He eventually disclosed his history of abuse to his sister Pamela, and she revealed that Wayne Lawson had also abused her. She told him to "just try to forget about it and get on with your life". 5. The offender reported that because of the sexual abuse he suffered he had difficulties engaging with the opposite sex. As a teenager he was extremely shy and frightened about interactions with girls his own age. In his 20's he married three times. The first two marriages ended quickly, however, at 22 he married Shelly and they had three children. This marriage ended acrimoniously 11 years later, and two years after that she accused him of sexual abuse of their son, which was dealt with on 7 June 2004 in the Maroochydore District Court, for which he was imprisoned for 12 months. The offender told the author that that offence did not involve "anything sexual" and he believed that Shelly had made the accusation to "make sure I wasn't going to get any of the inheritance" that she had just received. 6. The offender reported that he moved to North Queensland on his doctor's advice. 7. Under the heading "Education", the author recorded that the offender's schooling was highly disrupted and he left school at age 13. He worked in many different jobs including construction, bar work, gardening and as a furniture removalist. 8. The offender had a complex medical history including being diagnosed with hypertension at age 12. He had a history of stomach ulcers being caused by alcoholism and suffered with a degenerative bone condition causing him significant pain daily. He also reported a head injury suffered some years ago. 9. The offender reported being introduced to drugs and alcohol at about age six. He was exposed to petrol sniffing and drug taking which became habitual by age 12, and from age 13 he described wandering the streets and drinking with homeless people. He acknowledged that he used alcohol to "numb his life" and to "cope" with the childhood abuse. He had however abstained from alcohol for the last two years, aided by a prescription of the anti-depressant Lovan. He currently used cannabis to relieve pain from his spinal problem. 10. Under the heading "Mental Health", he reported being prescribed Prozac when he was about 12 years of age and was diagnosed with PTSD at age 14. He reported being on some form of anti-depressant most of his life and had several psychiatric hospital admissions, including to the Mental Health Unit of Toowoomba Hospital "a couple of decades ago". He described several suicide attempts including slashing his wrists and overdosing on the prescribed medication, as well as attempting to drink himself to death by ingesting two bottles of home-brewed vodka. 11. The offender described significant problems with sexual behaviour from his early teens. He caused himself significant pain and mutilation through masochistic sexual behaviours and regarded all of this with great shame, and had never spoken to any mental health professionals at length about his dysfunctional sexual behaviours. 12. Under the heading "Current Offences", the offender expressed horror at the accusations against him, saying that all of the family gatherings during the period of the alleged offences involved everyone being highly intoxicated and drug affected. It was difficult for him to recall the events that took place and he felt sure the accusations were a case of "mistaken identity". 13. In Ms Zapparo's opinion, the offender suffered from the following disorders: 1. PTSD 2. Alcoholic Use Disorder (in sustained remission) 3. Sexual Masochism Disorder (in full remission) 1. Ms Zapparo described his exposure to recurrent trauma from a very young age in resulting in a complex form of PTSD referred to as "Complex Trauma". He had experienced a life time of psycho-social maladjustment, including dysfunctional sexual behaviours, extremely poor self-esteem, dysfunctional relationships, vocational maladjustment, alcohol abuse and mood disorders. 2. Ms Zapparo opined that as a child in adolescence, the offender was trapped in a highly dysfunctional family and subjected to extreme personal trauma, in addition to witnessing highly aberrant behaviours from the adults around him. He required psychological support and she recommended he be assessed so as to access appropriate counselling services. 3. Exhibit 1.2 is a letter written to the court by the offender dated 11 May 2021. He stated that he had been a very emotional and tormented person because of his actions for nearly four decades. He himself had been very affected by his brother Wayne's actions. 4. The offender stated that he had sought help from psychologists, psychiatrists and counselling services, but had not received appropriate treatment. The offender set out his involvement in community work, for example, painting the local op-shop and helping seniors, and described himself as "a genuine soul" who had always helped the community wherever possible. He had been sober for almost two and half years and was extremely remorseful. He sought the court's compassion and understanding why he was reluctant with his initial plea and also that he said it was a case of mistaken identity "because I wanted to bury what I'd done". He also wanted the court to know what his brother Wayne had done to him from when he just five years of age. 5. Exhibit 1.3 was a photo of the offender's painting of a community building. Exhibit 1.4 was an email from Mr David Bruce-Smith, the managing director of a motor inn at Cardwell who had employed the offender for a period of eight months. He described the offender as an exceptional worker with good communication skills, who was well-liked by fellow workers and the company's customers. He had achieved a responsible service of alcohol certificate. 6. Exhibit 1.5 was an email from Ms P Borggild, for whom the offender had carried out furniture restoration and house painting, and done an excellent job. 7. Exhibit 1.6 was an email from Ms R Smith advising that the offender had assisted in a community garden for the benefit of the Cardwell community. 8. Exhibit 1.7 was an email from Ms D McDonnell. She is the manager of the Cardwell op-shop of which the offender is a regular customer as well as donating items to help raise funds for the community. He had also donated paintings which were sold for fundraising. 9. Exhibit 1.8 were NSW Department of Corrective Services case note reports as was Ex 1.9. 10. Exhibit 2 comprised Cardwell Family Medical Practice documents relating to the treatment of the offender. 11. Exhibit 3 was the Crown Case Statement regarding the outstanding matter of R v Wayne Lawson, in which there were six complainants and 71 counts. 12. Exhibit 4 was a transcript of the remarks on sentence of Judge Dodds in the District Court of Queensland at Maroochydore on 7 June 2004, for the offence of indecent treatment of a child under 16. The sentencing judge described what occurred as "an isolated incident". He was sentenced to 12 months, however, it was ordered that the sentence be suspended after he had served three months and was to remain suspended for a period of three years. The Crown Submissions 1. The Crown relied on a written outline of sentencing submissions in which it noted that the offender was entitled to a 5% utilitarian discount in respect of his plea of guilty entered on 10 March 2021. The Crown submitted that the s 5 threshold had been crossed and that the offender had been in custody from 6 February 2019 until he was granted bail on 13 August 2019. 2. The Crown noted that the maximum penalty for each count was 8 years imprisonment. In assessing the objective seriousness of the offending in Count 1, it was submitted the court would take into account that the offender was between 15 and 17 and the victim was between 18 and 20 years of age at the time of the offence. The victim was the accused's sister and the offence took place at the victim's brother's house where the victim was staying for a few nights. While the victim was asleep the offender undressed her and removed her false teeth. He then inserted his penis into her vagina. He was not wearing a condom and he ejaculated inside the victim's vagina. The duration of the sexual intercourse is unknown as the victim was asleep. The Crown noted that in 1999 the offender confessed what he had done to the victim and apologised to her. 3. In respect of the objective seriousness of the offending in Count 2, the Crown noted that the offender was between 19 and 22 years of age and the victim was between 24 and 26 years. The victim was the offender's sister and the offence took place in the victim's home. The victim was asleep and woke to find the offender on top of her with his penis inside her vagina. As she was asleep when it commenced, the duration of the sexual intercourse is unknown. Almost immediately after the offence, the offender said that he was "pissed", and didn't realise what he was doing and he apologised. 4. In respect of the Form 1 offence, the maximum penalty is 6 years imprisonment. The Crown submitted that it was a serious example of assault and indecent assault because it happened in the victim's home when she was in bed and involved the offender crawling on top of her, covering her mouth and then removing his t-shirt and wiping the victim's wet genitals. The victim was between 7 and 10 years of age and the offender between 16 and 19 years of age. 5. The seriousness of the offending for this Form 1 offence called for particular emphasis to be given to specific deterrence and the need for retribution, relying on R v Grube [2005] NSWCCA 140. 6. The Crown accepted that the offender had demonstrated some level of remorse, having apologised to JF immediately after the offence in Count 2, and to GL, approximately 17 years after the offence in Count 1. Of concern was that he had told Ms Zapparo in February 2021 that the allegations against him were a case of "mistaken identity". 7. With respect to the offender's prospects of rehabilitation, the Crown noted that the offender had subsequently offended in Queensland where he was convicted in 2004 for an aggravated indecent treatment of a child under 16 offence, for conduct in 2001. Of concern here, was that the offender had told Ms Zapparo that that conviction had not been in relation to "anything sexual". In those circumstances, the Crown submitted the offender's prospects of rehabilitation must be guarded. 8. The Crown submitted that general deterrence must play an important role in sentencing for sexual offences. Specific deterrence was also important in the sentencing process here. 9. On the basis of Ms Zapparo's opinion that the offender suffered from a complex form of PTSD referred to as "Complex Trauma", an order requiring long-term counselling should form part of the sentence. The Crown submitted that the sentences should be substantially accumulated, having occurred at different times and involved different victims. 10. The Crown submitted that if an offender has poor prospects of rehabilitation and showed a lack of remorse, protection of society may assume prominence in the sentencing exercise and militate against a finding of special circumstances, relying on R v Windle [2012] NSWCCA 222 at [55]. 11. In his oral submissions, the Crown submitted that the court would treat untested statements made by the offender to the neuro-psychologist with circumspection. Notwithstanding that, the Crown conceded that there was independent evidence on the Crown brief that the offender had had a troubled upbringing, however, not to the extent as outlined in the report of Ms Zapparo. 12. The Crown submitted the court would take into account the youth of the offender at the time of the offence, but drew the distinction that the court was not now sentencing a young person. The Crown submitted that the offender's prospects of rehabilitation were guarded and rehearsed its submissions in respect of the offender's remorse, and his comment to Ms Zapparo that it was a case of "mistaken identity". 13. The Crown rehearsed its submissions in respect of the objective seriousness of the offending in each case, submitting that both counts fell within the mid‑range of objective seriousness for offences pursuant to s 61D(1) of the Crimes Act 1900. The fact that the victims were sleeping elevated the criminality of the offending. The offender's submissions 1. Counsel for the offender also relied on a detailed written outline of submissions. In addition to the 5% discount for the utilitarian value of his plea of guilty, the offender submitted he was entitled to a unquantified discount for remorse which was reflective of his genuine remorse and shame in relation to his offending. The offender further relied on the letter of apology tendered on his behalf. 2. In assessing the objective seriousness of the offending, the offender submitted that the following should be taken into account: "a. the degree of violence and physical hurt inflicted; b. the form of forced intercourse; c. any circumstances of humiliation; and d. the duration of the offence." 1. In relation to Count 1, the offender submitted that the period of time was unspecified, the offence was unplanned and committed impulsively when the offender was "very drunk", and the injuries were limited to swelling and inflammation of the victim's vagina. It was submitted that whilst the victim was humiliated, given the offender was her brother, "the consequences of the offence could not be described as substantial". 2. The offender submitted that in terms of his moral culpability, the offence was committed in circumstances which reflected the offender's deprived upbringing and he was aged 15 at the time of the offence. 3. In relation to Count 2, the offender submitted that the offence was unplanned and committed impulsively after the offender had been drinking "most of the day". Further, the victim did not feel any pain during the offence, but would have been humiliated. The offence occurred in the victim's home, however, the consequences of the offences "could not be described as substantial". Again, the offender's moral culpability should be distilled for the same reasons referred to above, however, he was four years older at the time of this offence, however, he was still relatively immature. 4. It was submitted that the offender's objective criminality with respect to both offences lies within the low-range of offending for each offence. 5. Counsel for the offender summarised his subjective history as follows: 1. "He was born in July 1966 and raised by his biological parents in Liverpool along with eight other siblings. 2. His father was a 'chronic and violent' alcoholic; the offender was exposed to severe domestic violence and was neglected growing up. His older brother, Wayne, became his father figure. 3. Wayne started sexually abusing the offender from age 5; this continued until age 15; the abuse stopped when the offender went to live with his sister, Pamela. By this time, the offender had been exposed to significant substance abuse in a familial context. 4. The offender had held various casual jobs over the years. 5. He had also been in a number of relationships that have ended due to his alcoholism. 6. He has been abstinent in more recent years. 7. Additionally, he is presently employable and has and will continue to contribute to the community significantly through donating artwork to the local op-shop, and assisting the elderly." 1. Given that the offender had one conviction for malicious injury in New South Wales when he was aged 18, and his criminal history in Queensland reflects alcohol dependency, except for a child sexual offence relating to his biological son, it was submitted that his criminal history at the time of these offences ought not deprive him of leniency, but could be used as a guide when determining his prospects of rehabilitation. 2. The offender relied on principles relating to sentencing of young persons outlined in KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22] – [26]. The offender further submitted that in sentencing young persons, considerations of retribution may be of less significance and considerations of rehabilitation may be of more significance in sentencing, relying on Tammer‑Spence v R [2013] NSWCCA 297 at [36] – [37]. 3. It was submitted that on the basis of the offender's deprived upbringing, at the time of both offences, he would not have had the maturity to fully understand the consequences of his conduct against his sisters. 4. The offender relied on the following opinion expressed by Ms Zapparo in relation to his capacity for moral judgment: "As a child and adolescent, the offender was trapped in a highly dysfunctional family and subject to extreme personal trauma in addition to witnessing highly aberrant behaviours from the adults around him. His vulnerability to poor decision making and self-destructive behaviours have been in evidence throughout his adolescence and adulthood. He has had life-long difficulties manifesting in mood, sexual and substance use disorders, his childhood trauma no doubt a significant causal factor." 1. Thus, it was submitted that the offender's deprived upbringing from age 5 to 15 significantly reduced his moral culpability. 2. It was submitted that the offender's childhood trauma and the effect of that on his mental health made him an inappropriate vehicle for general deterrence. It would also make his time in custody more onerous. 3. It was submitted that the offender has good prospects of rehabilitation for the following reasons: "a. He ultimately pleaded guilty notwithstanding making admissions to JF immediately and GL some years later; b. The offences occurred in unique/depraved domestic circumstances which the offender has tried to "bury" in his memory; c. At the time of the offence in Count 1, he had no prior convictions; d. At the time of the offence in Count 2, he did not have any significant prior convictions, save for one offence of malicious injury committed at age 18; e. The judge's remarks in relation to the offence against his son, committed when the offender was in his mid-thirties, refers to the offender's deprived upbringing as explaining the isolated incident of fellatio; f. Since that time, the offender has not been convicted of any other serious offences; g. He has been of good behaviour whilst on bail and contributed to the community; and h. He is motivated to obtain treatment for trauma and other disorders." 1. It was submitted that the offender's risk or re-offending could be assessed as guarded, however, with appropriate supervision and counselling, his risk of recidivism could be drastically reduced, relying on the testaments tendered on his behalf as to his contribution to the small town of Cardwell. 2. The offender conceded that there are no alternatives to full-time imprisonment in relation to Count 2, but not Count 1, by virtue of the offender being a child, together with his deprived upbringing. It was submitted the court should sentence the offender to a lengthy community corrections order in relation to Count 1 to enable him to obtain the intensive and long-term counselling that he requires. It was submitted that the court should impose a term of imprisonment in relation to Count 2, taking into account the Form 1 offence, which should only notionally or marginally increase the sentence in relation to Count 2 because of the offender's age and deprived upbringing at the time of the Form 1 offence. 3. It was further submitted the court should make a finding of special circumstances to allow the offender an extended period on parole, particularly given the Crown concession that an order requiring long-term counselling was appropriate. 4. In the event that the court determined that both offences warranted terms of imprisonment, such sentences should be wholly concurrent as they were committed against the same back-drop of the offender's unique and extreme subjective case. It was further submitted that a degree of mercy should be afforded to the offender because the offences were reflective of the dysfunction and horrors which the offender endured as a child. 5. In his oral submissions, counsel for the offender acknowledged that the offender was to be sentenced in accordance with current sentencing practices, having regard to the maximum penalty of 8 years imprisonment in respect of each offence. 6. Counsel rehearsed his submissions in respect of a finding of special circumstances. He noted that the offender had, for a period of four decades, done his best to overcome a deprived background and his shame in respect of offending against two of his sisters. The court would have regard to the fact that he had no parental guidance and was exposed to domestic violence and an extreme level of sexual abuse from his brother Wayne, which impacted heavily on his moral culpability. By the time he was 15 years of age, it was submitted that such sexual abuse had been normalised for him. 7. It was submitted that at the time of Count 1, the offender was 15 years of age and it was an isolated incident. He had no prior criminal convictions and had no contact with Juvenile Justice. Had he been sentenced at that time, a sentence of imprisonment would have been harsh but not manifestly excessive. It was, however, a first offence and the offender would have had the benefit of sentencing principles applicable at that time. Count 2 was committed four years later when he was 19 years of age. Whilst a sentence of imprisonment was appropriate, he had already served over six months, and a finding of special circumstances should be made so as to fashion a sentence around that period of imprisonment. 8. With respect to the Form 1 matter, the age of the offender at the time was important. It was submitted he was aged 16 years. 9. Counsel rehearsed his submissions in respect of the remorse the offender had expressed by apologising to his sisters. Notwithstanding his late plea of guilty, it was submitted that he had always been extremely remorseful, that this was his "truth", and that he had good prospects of rehabilitation. 10. Counsel relied on the content of Ex 2, the medical clinical notes, to highlight the numerous medical conditions suffered by the offender which had led to him suffering great hardship whilst in custody. He had been verbally threatened and suffered extreme pain as a result of his spinal condition. He was now, however, willing to engage in rehabilitation and was genuinely remorseful and ashamed of his conduct. 11. Counsel rehearsed his submissions to the effect that the offender had good prospects of rehabilitation, given his abstinence from alcohol, his "monkish life", and his contributions to the community. It was submitted that a return to custody would destroy any advance made in his rehabilitation over the last two years and he would be best returned to the community who respected him. Crown submissions in reply 1. In reply the Crown submitted that there was no evidence of the conditions suffered by the offender when previously in custody and no weight should be given to the submission that he suffered great hardship. 2. In respect of the prior sentence in 2004 of 12 months, the sentencing judge had described that offence as an isolated incident, whereas it was now known not to be. 3. In respect of the submission that the sexual abuse became normalised behaviour for the offender, the Crown submitted that in respect of Count 2, he clearly knew that his criminal conduct was wrong and immediately apologised for it. Similarly, in respect of the Form 1 offence, he knew what he was doing was wrong as the Agreed Facts outlined, he had put his hand over the victim's mouth and told her to "Shhh". Determination 1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSPA) sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (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, (g) To recognise the harm done to the victim of the crime and the community." 1. The sentencing of the offender here, for offences which occurred in the 1980's is not without its complexity. Count 1 was committed between 1981 and 1983 at a time when the offender was 15-17 years of age. The Form 1 offence (Sequence 10) attached to Count 2, occurred between 1983 and 1985 when the offender was between 16-19 years of age. On the Statement of Facts before me, I find the probability was that the offender was a minor at the time of that offending, that is, under the age of 18 years. Had those offences been dealt with within a reasonable time of the offending, the offender would have been sentenced as a child. Further, the offence in Count 2 occurred between 1986 and 1988 when the offender was between 19-21 years of age. He would have been sentenced as a young offender and his young age is still a factor to be taken into account. 2. The matter is further complicated by the application of s 25AA of the CSPA. That means that a court must sentence for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, and not at the time of the offence. This applies only to the Form 1 offence where the victim was aged between 7 and 10 years. A further complicating factor is the delay in sentencing for offences the offender was known to have committed. 3. In respect of Counts 1 and 2, where the victims were not children, I am to take into account the maximum penalty of 8 years imprisonment as a guidepost in the sentencing process for each offence, and I am to disregard any increase in the maximum penalties for the offences as they currently appear in the Crimes Act 1900. I am then to assess the objective seriousness of the offending conduct, taking into account all of the relevant circumstances, and then have regard to any aggravating or mitigating factors. In respect of Count 2, I am also to take into account the Form 1 offence. 4. The objective seriousness of the offending in Count 1 was high. Whilst the offender was aged between 15 and 17 years, the victim was 18 to 20 years of age. She was asleep on a mattress in the lounge room of her brother Wayne's home, and her son was sleeping next to her. She went to sleep fully clothed and during the night the offender, who had become very drunk, came into the lounge room, removed the victim's clothing and had unprotected penile/vaginal intercourse with her. Whilst it is unnecessary to categorise the high level of seriousness as there was no Standard Non-Parole Period, the offending was clearly within the mid-range for an offence pursuant to s 61D(1) of the Crimes Act 1900, and towards the upper part of that mid-range. 5. The offending in Count 2 was also objectively very serious offending. The offender was 19 to 21 years of age and the victim, his sister JF, was 24 to 26 years of age. She was living with her partner and son at her brother Wayne's home and on an occasion when the offender visited and stayed the night, the offender and all other family members had been drinking heavily. JF fell asleep on a couch in the lounge room, and woke in the middle of the night and felt an erect penis inside her vagina. Her clothing had been moved, her skirt was around her waist, and her underwear pushed to one side of her genitals. When JF woke up she saw the offender on top of her and felt his penis slide out of her vagina. She became hysterical and shouted out for her partner, and before running out of the premises, the offender said: "I'm sorry! I'm sorry! I didn't know where I was! I didn't know what I was doing! I was just too pissed! I'm sorry!" 1. It was an aggravating factor in respect of Count 2 that the offence occurred in the home of the victim, pursuant to s 21A(2)(eb). I do not find that it was an aggravating factor in Count 1 that the offence occurred in the presence of GL's son, as he was asleep at the time and there is no evidence he was aware of the offending. Nor do I find it an aggravating factor in respect of both Counts 1 and 2 that the emotional harm caused by the offending in each case was substantial, pursuant to s 21A(2)(g). Both victims were older than the offender at the time of the offence and both were adults. Whilst the Agreed Facts make it clear that both victims reacted emotionally to the offending, there was no Victim Impact Statement presented to the court, nor any medical evidence of physical or psychological injury to each of the victims. A further complicating factor was that the victims were also subject to sexual assaults by the offender's older brothers. Therefore on the evidence before me, whilst accepting that there must have been some emotional harm caused to each of the victims, there is no evidence supporting a finding that that harm was substantial in either case. 2. The fact that the offending on each count may have been of a relatively short duration, is not a matter which diminishes the objective seriousness of the offending in each case – see Fisher v R; R v Fisher [2021] NSWCCA 91 per Fullerton J at [85] and [86], applying R v Daley [2010] NSWCCA 223. 3. The offender's background of deprivation as a child is a significant factor in reducing his moral culpability for the offending. He was one of nine children, in a highly dysfunctional family, lacking a father figure and was subject to ongoing physical and sexual abuse from older siblings. I accept Ms Zapparo's opinion, that as a child and adolescent, he was subjected to extreme personal trauma in addition to witnessing highly aberrant behaviours from the adults around him. This led to a vulnerability to poor decision making and self-destructive behaviours which have manifested in life-long disorders, to the extent that his childhood trauma was a significant causal factor to his offending behaviour. I accept the offender's submission that this not only reduces the moral culpability for his offending, but makes him an inappropriate vehicle for general deterrence, which would otherwise be an important factor in the sentencing process. Specific deterrence is also diminished in importance here, not only because of the offender's childhood trauma, but also because he has, for a considerable period of time, not offended, and is now 54 years of age. 4. I take into account the testimonials written on behalf of the offender attesting to his otherwise good character and his contribution to his local community. These are relevant to his prospects of rehabilitation and also his risk of recidivism. I find that he has good prospects of rehabilitation and that any risk of re-offending must be now regarded as low. 5. The offender is entitled to a 5% utilitarian discount for his plea of guilty. I find that he is entirely remorseful for his offending and that the late entry of his plea is explained by the background circumstances to his offending. 6. In sentencing for Count 2, I have to take into account the Form 1 offence of sexual assault and act of indecency on a person under the age of 16 years. The maximum penalty for that offence is 6 years imprisonment, and the victim was aged between 7 and 10 years of age. Notwithstanding that, as I have found above, the offender was a minor, it was still objectively serious offending on a very young victim and there must be some accumulation on sentence in respect of Count 2 for this matter. 7. Another relevant matter here is the delay in sentencing the offender for offences that occurred some 35 to 40 years ago. Relevant to that delay is that following the offending in Count 1, the offender admitted to the victim his involvement in the offence in 1999, over 20 years ago. In respect of Count 2, the victim immediately knew that it was the offender and he immediately apologised. There has therefore been a delay of almost 35 years in the offender being sentenced in respect of that incident. This is therefore not a case where the offender has benefited from his offending conduct remaining secretive and enabling him to lead a life free from opprobrium for his offending conduct. Rather, he has been left in a state of uncertain suspense as to what will be the consequences of his offending conduct so that notwithstanding that the offender is by no means being sentenced for stale crimes, considerations of fairness come into play resulting in a degree of leniency being extended to the offender – see R v Todd (1982) NSWLR 517 at 519; Mill v R (1988) 166 CLR 59 at 66. A further factor arising from that delay, is that the offender has advanced his rehabilitation during that period of time. He is now abstinent from alcohol, and leads a quiet life within a small community to which he contributes both by participation in community projects and by assisting the elderly. Also relevant is that he has developed age-related medical conditions which meant that he endured hardship during his previous period of custody. 8. I take into account the offender's conviction in 2004 for a child sexual offence for which he was sentenced to a period of imprisonment of 12 months. Whilst on that occasion the sentencing judge characterised the offending as an isolated incident, it clearly was not, given the offences for which he is now being sentenced. However, the offending occurred over 17 years ago, and there is a substantial period of non-offending which has followed it. 9. The court must approach self-reported subjective matters to psychologists which are not otherwise supported by evidence, and opinions based on them, with much circumspection. However, in this case, I accept the offender's personal history as set out in the report of Ms Zapparo, as the Crown conceded that there was some support in the Crown brief as to the matters outlined therein, and Ex 3 which outlined the numerous counts of alleged sexual offending by Wayne Lawson concerning six complainants, provided ample support for the dysfunctional family environment in which the offender was brought up. I accept Ms Zapparo's opinion that he suffers a complex form of PTSD, referred to as Complex Trauma, and has experienced a lifetime of psycho-social maladjustment, including dysfunctional sexual behaviours, extremely poor self-esteem, dysfunctional relationships, vocational maladjustment, alcohol abuse and mood disorders. 10. These matters constitute a mental impairment which affects the offender's sentencing in the following ways. First, general deterrence must play a reduced role in his sentencing, as do considerations of retribution, denunciation and punishment. Secondly, the offender's moral culpability must be reduced and thirdly, in considering the appropriate punishment, the offender's mental impairment will mean that a custodial sentence will weigh more heavily on him – see R v Eckersley [2021] NSWSC 562 at [75] and [76], and the cases referred to therein. 11. Having regard to all of the above matters, in respect of Count 1, notwithstanding the objective seriousness of the offending, I am not satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Had the offender been sentenced in a timely fashion, as a child, rehabilitation would have been given prominence for the reasons outlined above. Having regard to his childhood deprivation and abuse, together with the advances he has made in his rehabilitation later in life, I intend to sentence the offender in respect of Count 1 by way of a non‑custodial order. I intend to impose a community correction order for a period of 2 years and 6 months from today, with the standard conditions. 12. In respect of Count 2, I am satisfied that the threshold in s 5 of the CSPA has been crossed, and having considered all possible alternatives, no penalty other than imprisonment is appropriate, particularly having regard to the accumulation on sentence for Count 2 required by taking the offence on the Form 1 into account. Having regard to the matters I have outlined above, together with the delay in sentencing, and having regard to the maximum penalty of 8 years imprisonment, I intend to impose a sentence of imprisonment of 12 months in respect of Count 2. Absent the offender's childhood deprivation and abuse, the delay in sentencing of almost 40 years and the advances he has made in his rehabilitation, such a sentence may appear to be somewhat lenient. However, this is an appropriate case for the court's exercise of mercy in the sentencing process, based on the offender's history of childhood deprivation and exposure to sexual abuse, his genuine remorse, mental impairment, and ill health. In Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54, Kirby J said at [68]: "Each case must be judged on its own facts. The adoption of a blanket rule would itself be an error of sentencing principles. A discretion must be left to permit those with the responsibility of sentencing to take into account the peculiar circumstances of the case, any exceptional circumstances affecting the prisoner and in some cases the prisoner's family, or some feature of the matter that reasonably arouses a judicial decision that a measure of mercy is called for in the particular case." 1. This is such a case. Thus, having regard to all of the factors that I take into account in the synthesis here, it is an appropriate penalty, notwithstanding the objective seriousness of the offence. 2. I make a finding of special circumstances pursuant to s 44(2), having regard to the offender's age, the offender's various medical conditions which caused him hardship during his last period in custody, and the trauma that caused to him. I intend to set a non-parole period of 188 days, being the time spent by the offender in custody between 6 February 2019 and 13 August 2019. The sentence will therefore backdated by 188 days, and the balance of the sentence will be a period of 178 days from today, terminating on 4 December 2021. Orders 1. I make the following orders: 1. You are convicted of the offence in Count 1 pursuant to s 61D(1) of the Crimes Act 1900, that you between 28 July 1981 and 28 July 1983, at North Parramatta in the State of New South Wales, did have sexual intercourse with GL, without the consent of GL, knowing she was not consenting. 2. You are convicted of the offence in Count 2 pursuant to s 61D(1) of the Crimes Act 1900, that you between 1 January 1986 and 9 February 1988, at Telopea in the State of New South Wales, did have sexual intercourse with JF, without the consent of JF, knowing she was not consenting. 3. In respect of Count 1, pursuant to s 8(1) of the CSPA, instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. The term of that order is for a period of 2 years and 6 months from today. The standard conditions of the order apply pursuant to s 88(1) of the CSPA: 1. You must not commit any offence; and 2. You must appear before the court if called upon to do so at any time during the term of the order. If you fail to comply with the conditions of the order, further action may be taken against you. This may require you to return to court to be re-sentenced. 1. In respect of Count 2, you are sentenced to a non-parole period of 188 days commencing on 5 December 2020 and expiring today. 2. The balance of term will be a period of 178 days from 10 June 2021 and expiring on 4 December 2021. 3. I certify that I have taken into account the matter on the Form 1 attached to Count 2. ********** Amendments 11 June 2021 - Amended error in dates 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: 11 June 2021