District Court New South Wales Medium Neutral Citation: R v BW [2021] NSWDC 721 Hearing dates: 08 & 09 November 2021 Date of orders: 09 November 2021 Decision date: 09 November 2021 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: Aggregate sentence of imprisonment of 8 years 6 months with a non-parole period of 5 years 3 months Catchwords: CRIME — Sexual offences — Aggravated sexual assault — Victim under authority CRIMINAL PROCEDURE — Trial — Jury SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Markarian v R [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 R v Fisher (1989) 40 A Crim R 442 R v ND [2016] NSWCCA 103 R v RC [2020] NSWCCA 76 Scott v R [2020] NSWCCA 81 Tepania v R [2018] NSWCCA 247 The Queen v Olbrich [1999] 199 CLR 270 Category: Sentence Parties: Regina (Crown) BW (offender) Representation: John Stanhope (Crown Prosecutor) Irving Wallach (counsel for the offender) Director of Public Prosecutions (NSW) (Crown) Adrian Kiely Legal (offender) File Number(s): 2018/00293103 Publication restriction: No publication of the name of the complainant or the accused nor of any information which may enable their identities to be ascertained REVISED EX TEMPORE JUDGEMENT INTRODUCTION 1. This is a judgement on the imposition of sentence in the proceedings R v BW to whom I shall refer by those initials. 2. BW appeared in the District Court at Newcastle and was presented for trial upon an indictment containing six counts. Count 2 was in the alternative to count 1 and count 6 was in the alternative to count 5. The jury returned verdicts of guilty in respect of count 1, count 3, count 4 and count 5 and therefore there was no need for them to be called upon to give a verdict in respect of the alternative offences. THE OFFENCES 1. The offences were expressed in the following terms: Count 1, between 10 May 2012 and 16 July 2013 at Raymond Terrace or another place in the State of New South Wales, did have sexual intercourse with MW, she then being under his authority and under the age of ten years namely three or four years. 1. This offence was contrary to s 66A(2) Crimes Act 1900. 2. Count 3, alleged misconduct on the same occasion. The charge was in the following terms: Between 10 May 2012 and 16 July 2013 at Raymond Terrace or another place in the State of New South Wales, did assault MW and at the time of the assault committed an act of indecency on her, she then being under the age of 16 years, namely three or four years. 1. This offence is contrary to s 61M(2) Crimes Act 1900. 2. Count 4, alleged misconduct on a later occasion. This offence was charged in the following terms: Between 31 October 2012 and 16 July 2013 at Tomago in the State of New South Wales did assault MW and at the time of the assault committed an act of indecency on her, she then being under the age of 16 years namely three or four years. 1. Finally, count 5 in the same sequence of misconduct alleged the following: Between 31 October 2012 and 16 July 2013 at Tomago in the State of New South Wales did have sexual intercourse with MW, she then being under his authority and under the age of ten years, namely three or four years. 1. Again contrary to s 66A(2) Crimes Act 1900. Count 4 was contrary to s 61M(2) Crimes Act 1900. 2. The maximum penalty specified for the offences charged in count 1 and count 5 are in each case imprisonment for life with a standard non-parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999 of 15 years. 3. For counts 3 and 4, the maximum penalty specified was imprisonment for ten years with a non-parole period of eight years for the purposes of those provisions in the Crimes (Sentencing Procedure) Act 1999. PRE-SENTENCE CUSTODY 1. The offender was allowed to continue on bail after the verdicts of guilty until yesterday, 8 November 2021, when bail was revoked and the offender was taken into custody. Thus he has been in custody for a period of 207 days including yesterday and in respect of the period from 25 September 2018 to 18 April 2019, specified to be a period of six months and 25 days. The Crown Sentence Bundle covering sheet specified that period to equate to 206 days which I have confirmed upon the sum of the days of each of the months in that period during which he was held. Thus the sentence that I am about to impose in the aggregate will commence on 16 April 2021 to bring to account the pre‑sentence custody. THE STANDARD NON-PAROLE PERIODS 1. The assessment of sentence in this matter requires a consideration of the standard non-parole period provisions to which I have referred; those periods are included in the benchmarks that one must bring to account together with the maximum penalty specified for each of the offences. 2. As I have said the relevant provisions are found in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999 in their present form, following the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39. Section 54A(1) in that part of the Act provides that the standard non-parole period for an offence is that which is included in table of provisions; section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence that falls within the middle range of objective seriousness taking into account only the objective factors affecting the relative seriousness of the offence; section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account; section 54B(3) requires that the Court record its reasons for setting a non‑parole period that is longer or shorter identifying each factor taken into account. 3. Objective gravity will be assessed upon the consideration of the objective factors affecting the relative seriousness of the offences without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending bringing to account relevant factors provided in s 21A of the Act except for those that are essential elements or integral characteristics of the offence. This statement should be considered with the assistance provided by Johnson J in Tepania v R [2018] NSWCCA 247 to which I shall come. 4. The fixing of a non-parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical or staged or tiered process of reasoning when assessing appropriate sentence but must identify all relevant matters bearing upon the question of the appropriate sentence in the process of intuitive synthesis discussed for example by McHugh J in Markarian v R [2005] HCA 25 in the determination of sentences for each of these offences as appropriate or indicative of what the Court would have otherwise imposed if dealing with them individually. The standard non-parole period and the maximum penalty are brought to account as legislative guideposts along with other established sentencing practices and by reference to matters identified where relevant in ss 3A, 21A and 22A of the Act. THE OBJECTIVE SERIOUSNESS OF THE CONDUCT 1. The parties are not too distant from each other in the assessment of objective seriousness of these offences. The Crown concedes that the misconduct alleged in counts 1 and 2 falls below mid-range but in respect of counts 3 and 4 it falls at least at or slightly above mid-range of objective seriousness. The submission on behalf of the offender is that the misconduct would fall below mid-range in each case with the misconduct alleged in respect of counts 1 and 2 being less significant or serious than the misconduct alleged in respect of counts 3 and 4. 2. It is always a matter of judgement and minds will often differ but upon my perception of the evidence and the facts which it supports I accept the submissions of the Crown with regard to the objective gravity of each of these offences bringing into account the matters that the Crown has identified and to which I shall come. 3. It does not follow from this that one then applies an arithmetical formula to establish a range of sentencing setting the sentence in each case and the non-parole period at a percentage of the period specified in the relevant provisions. The decision as to where to place the objective seriousness of the offences is part of the task of sentencing requiring the synthesis of all matters objective and subjective so that the sentence will be reached reflecting all of the relevant matters in the exercise of the discretion which I have in determination of this matter. 4. I referred to the guidance provided by Johnson J in Tepania v R ibid. His Honour summarised the provisions to which I have referred at para [110] with reference to the explanatory memorandum published upon the amendment to these provisions after the decision in Muldrock v The Queen ibid. His Honour pointed out at para [112] that regardless of whether an offence is a standard non-parole period offence or is not, the Court is required to make an assessment of the objective gravity of the offence applying general principles so that all matters or factors which bear upon the seriousness of the offence will be taken into account unless excluded by statute. This exercise requires assessment of the moral culpability demonstrated in the commission of the crimes. 5. There is evidence before me which speaks to the challenges faced by the offender in his life including his chronic misuse of alcohol leading to physical damage with which he is now burdened and which must impact upon the level of punishment he will suffer in custody. The extent to which his moral culpability might be seen to be reduced is limited in this case though in circumstances where the Court is left with an offender who denies and continues to deny any wrongdoing either in the form in which it was alleged or otherwise. THE FACTS 1. The facts have been succinctly and quite properly summarised by the Crown and one might say with respect, with carefully written and helpful submissions. The evidence is clearly supportive of what is advanced by the Crown and as was conceded by counsel in the course of submissions yesterday there is nothing to be said to gainsay the summary of facts upon which the Court must determine sentence in light of the evidence that was given by the complainant in these allegations. 2. The principles relevant to the assessment of what facts ought to be found in sentence proceedings after trial include that I am not obliged to find facts that are most favourable to the offender, but when taking into account those that are adverse to him in support of the Crown case I cannot act upon them unless I am satisfied that they are established beyond reasonable doubt, whereas those matters upon which the offender would rely need only to be established upon the balance of probabilities as stated in multiple decisions including The Queen v Olbrich [1999] 199 CLR 270. 3. The offences were committed against the following background. All charges relate to the one complainant born in 2009 and therefore now aged 12; she is the daughter of the accused and his partner at the time. At the time of her birth the offender and his partner were living together at an address in Shortland. The complainant had three older siblings. The offender and his partner remained together until February 2011 when they separated and the offender moved to live with his parents. The complainant was then aged two. 4. The offender's partner then began a relationship with a man named Singh and they married in 2012. Shortly after their joinder in May 2012 they took a lease on a house in Raymond Terrace where they lived with the three children including the complainant until February 2013 at which point they moved to another address again in Raymond Terrace. Contact between the offender and the complainant during this period was generally at his parent's house in Glendale. He had at the time of the offences charged in counts 1 and 2 a Mitsubishi Lancer car coloured blue. The misconduct alleged in counts 1 and 3 occurred in the motor vehicle. 5. By 15 April 2013 the offender had moved to live in a cabin in a caravan park in Tomago where he lived until 15 July 2013. The misconduct upon which counts 4 and 5 were brought took place on an occasion when the complainant was visiting the offender at his cabin with her brother but while her brother was absent from the cabin and at the swimming pool. 6. The evidence given by the complainant and her mother was to the effect that the complainant had contact with the offender at the caravan park on more than one occasion. When he was interviewed by the police the offender said there was only one occasion when she came to visit him at the cabin but on that occasion she and her brother both came to visit, her brother went to swim in the pool, the offender had too much to drink, and there was an argument when the complainant's mother came to collect the children. 7. Count 1, the charge of sexual intercourse contrary to s 66A(2) Crimes Act 1900 was brought upon the evidence of the complainant that there was an occasion when the offender took her in a blue car for a drive, stopped the car, put his hand in her pants and rubbed her vagina. She said that this occurred on the inside of her vagina and thus the allegation is one of digital penetration. 8. Count 3 was drawn upon the evidence by the complainant that on the same occasion he put his hand inside her pants and rubbed her bottom and kissed her on the lips. These descriptions are found in the evidence given by the child recorded beforehand electronically on 17 July 2018 at questions 274 to 305 and question 375 to 384 respectively. 9. Count 4 was on a separate occasion in the cabin when the complainant and her brother had contact with the offender in a visit there. While her brother was at the swimming pool the offender and the complainant were in his cabin. He had her remove all her clothes, he removed his own clothes. On the bed he rubbed her vagina. That description is found in the earlier recording on 17 July 2018 at questions 178 to 215. 10. Count 5 was on the basis of conduct on the same occasion when the offender touched the complainant on the bottom and put his finger "up it". He also kissed her on the lips. This incident ended with the offender telling the child to dress because her brother was returning. That description is found at question 216 and at questions 239 to 244 on 17 July 2018. 11. Evidence that came from her brother was to the effect that on an occasion he and the complainant went to the cabin to visit the offender during which he went to swim leaving her with the offender. He returned and saw the offender with her on the upper bunk and she was wearing a top but her pants were down. The offender was lying on top of her and had his clothes on. He was touching her on the vagina. The offender told the brother to get out. 12. The evidence thus presented by the brother was challenged on behalf of the offender. The Crown concedes that the Court may but is not required to make findings of fact with regard to the evidence given by the brother, noting the distinction between the description given by the complainant and the brother with regard to the clothing that he saw worn by the offender at the time. It remains that the evidence is consistent in significant respects. I have no difficulty accepting the brother to have been a witness doing his best to give a truthful account of what he recalled and notwithstanding there may be some questions regarding the entirety of his evidence when assessed for its accuracy, it seems to me that it is a description of the event that I may bring to account in the assessment of the objective seriousness of this misconduct. 13. Agreed facts were presented in the trial including that on 8 September 2013 the complainant was assessed by a speech pathologist. She was within the moderately delayed range with receptive language skills within the borderline mildly delayed range for expressive language skills and had a severe speech impediment. Exhibit 8 at para 7 refers to this. On 15 November 2013 when the complainant was four she was interviewed by a FACS caseworker and was asked questions about her family members and particularly about her stepfather, Mr Singh. The jury were played a recording of the interview with the complainant that had been conducted within the same year as the incident giving rise to counts 4 and 5. 14. There was a contest as to the meaning and significance of the interview on 15 November 2013. The Crown submission was that the representations recorded could not be determined given the internal inconsistencies in what was said by the complainant and the effect of her limitations, to be considered with what I found to be inappropriate questions in the form adopted by the interviewer. As the Crown points out they were leading in nature and were not the type of questions that one would expect to be used by someone trained in the task of having a child provide a description of her memory of such significant events. 15. The defence argument was that the representations made by the complainant were in truth made in respect of Mr Singh and not the offender. The Crown submits that I am permitted but not required to make a factual finding about the meaning and significance of the interview for the simple reason that the verdicts given by the jury are based upon the interviews with the complainant in 2018 and her pre-recorded evidence that was given afterwards but before the trial. I agree with that observation by the Crown and I proceed accordingly. 16. As I indicated earlier the objective seriousness for counts 1 and 3 is below the middle of the range, in my assessment, consistent with what the Crown submitted and indeed with what was said on behalf of the offender. I accept also that the objective seriousness for counts 4 and 5 is at least at mid-range and to the extent that there is a difference in position offered on behalf of the offender regarding that assessment I accept the submission by the Crown. 17. Relevant considerations include that the offender was the natural father of the complainant. At all times at her age was at the lower end of the range for the offences that were provided in the provisions pursuant to which the prosecutions were brought. The upper limit for the offence contrary to s 66A(2) Crimes Act, was ten and she was no more than four. The upper limit for the offences contrary to s 61M(2) Crimes Act is 16. The fact that the complainant was under the offender's authority at the material time is an element in the offences charged contrary to s 66A(2) but not in respect of the charges of indecent assault contrary to s 61M(2) and thus in respect of those two offences the relationship between the offender and his daughter and his status with her under his authority is an aggravating factor that must be brought to account. 18. The Crown concedes that the misconduct forming the basis for counts 1 and 3 could be regarded as impulsive and of relatively short duration. With that I agree, however the misconduct for counts 3 and 4 was subsequent, during which both the complainant and the offender were disrobed and on a bed in the offender's cabin. The conduct came to an end only because the arrival of the complainant's brother which appears to have been imminent. 19. The Crown accepts that it is reasonably possible that the incident giving rise to counts 4 and 5 took place after he had been drinking alcohol, was intoxicated, and that therefore there might be some explanation in terms of poor judgement, lack of impulse control and/or disinhibition. I agree that as such it does not provide any excuse for the misconduct of which he has been found guilty and bearing in mind the presence of mind that was apparent in having the child disrobe and have her on the bed with him and to have her dress upon the imminent return of her brother, as he appears to have perceived it, that should attract limited weight in my view. THE OFFENDER 1. The offender was born in 1974 and would be aged about 39 at the time of the offending. He is 47 now. He has a criminal record but for relatively minor offences and there is nothing in his background reflecting comparable behaviour. The Crown correctly concedes that the prior convictions ought not to be brought to account as an aggravating factor or as of great significance. 2. A sentence assessment report was prepared. Information was available from the offender, his partner, his mother, his aunt, the police facts whatever they might have been, and his antecedents and Corrective Services New South Wales records. These show the period of time he has been in custody for these matters. It is also noteworthy that he has not been found to have committed any custodial offences during his incarceration. 3. There was a pre-sentence consultation with a corrective services senior psychologist, Tina Kennedy, which was also provided with the sentence assessment report. At the time of the report he was living with his aunt, and had the support of his family. He has five children from previous partners with whom he has minimal contact. He was unemployed, receiving social assistance. His alcohol misuse has been a significant factor in his prior offending. His attitude at the time of the offending could not be identified because of his denial of the offences. He was drinking heavily at the time of the offending, a bottle of bourbon four times a week to the point of blacking out. He suffered withdrawals when not drinking alcohol and he reported that he had attempted treatment at a residential rehabilitation facility at or about the time of the offending. 4. The report notes the existence of an apprehended domestic violence order in place to protect the complainant. He reported a prior diagnosis of depression and anxiety for which he was receiving treatment but he provided no record of this. He demonstrated no insight into the impact of his offending on the complainant. He maintained his innocence and disputed the allegations against him. It was noted that through multiple conversations with the offender there were discrepancies in the information he provided but that is not further described. He at times blames the complainant for fabricating the evidence and at other times made allegations that other family members committed the offences on his daughter. I would take that to be a reference to Mr Singh consistent with the way the trial was conducted on his behalf. 5. He is willing and able to undertake intervention, he represented, but lack of insight into his offending behaviour is a barrier to identifying what interventions might address the misconduct of which he has been found guilty. He is willing to undertake community service work but would need seated activities. That is not a matter of concern at the present time. There is no option but to impose a term of imprisonment in this case. 6. He demonstrated some difficulty in the course of the assessment process. It is said that he was difficult to engage and at one point threatened to terminate the interview when probed about the offences. The risk assessment is that he is of a medium risk of re-offending and there is reference to a supervision plan, which might become of greater significance when he is at the point of release to parole. 7. The report from the corrective services psychologist refers to his demographics, his education to Year 10, his lack of employment for the past ten years; his last employment was terminated because of alcoholism. He has not been a drug user. He has three prior occasions of rehabilitation in 2011, 2013 and 2017 but clearly this has not been of any assistance to him. Once more he denied the offences and disputed the facts presented against him. When discussing the offence with the community corrections officer it was noted that he became agitated and he revealed that he is intending to appeal the outcome of the trial. 8. He is attributed with the representation that his daughter made up the allegations and was confused by his ex-partner and her new partner and that they are behind the charges. He said that he had only limited contact with the children who are under the control of the Family and Community Services department. The Static-99R instrument was used to assess his risk of reoffending and he was found to be in the medium range. 9. Evidence tendered on his behalf comprised a medical certificate from Mayfield medical centre written on 3 November 2021 certifying that the offender has recurring gastric reflux for which he takes Pantoprazole, 40 milligrams daily with adjustment of diet and lifestyle. I am familiar with that medication; it controls the development of stomach acid which can cause burning to the oesophagus. He suffers from numbness and weakness in legs arising from small fiber neuropathy. He uses a walker and was for a period of time wheelchair bound but not at the point of this certificate it appears. 10. He has chronic liver difficulty problems but his liver status is stable. The document was provided from 4Cyte Pathology. This relates to assessments made in January 2020 against the clinical history of progressive numbness in his feet and imbalance with a family history of multiple sclerosis. There was an investigation by MRI of his brain which effectively revealed no abnormality with the conclusion that non-specific white matter changes did not fulfil the criteria for multiple sclerosis; the study was otherwise unremarkable. 11. A document from the John Hunter Hospital included his admission on 21 February 2020 and his discharge on that day. He had been referred there by his general practitioner for investigation of the ongoing pain and numbness in his legs and feet bilaterally which had been ongoing for three weeks. The area was sensitive to touch, he could not mobilise due to pain. He was wheelchair bound at that point. He had been taking Panadeine forte with some effect but couldn't take Endone because of dizziness. His background included the GORD and alcohol abuse and other aspects which do not need rehearsal at this point. There is reference to his limited mobility and need to use a wheelchair at that point. He is attributed with being a cannabis smoker as well as a heavy drinker from which he was abstinent at the time of this document, it appears. 12. The history represented by him has been provided including his clinical assessment and his examination. The results of immunology were pending at the time of the creation of this document and he was discharged the same day to his own accommodation. The evidence clearly shows that he has physical impairments which must be brought to account because these will impact upon his incarceration. 13. On his behalf there was tendered a report from a psychologist, Ms Kris L North written on 10 November 2020. The psychologist saw the offender for assessment on 14 October 2021 over a two hour audio visual link. This facility was required because of the Covid-19 restrictions. There was a second telephone interview conducted on 2 November 2021. Notwithstanding the difficulties that an assessment using that mode involve, the assessment I find to be reliable and the conclusions and opinions offered I accept, subject to one qualification with regard to the opinion offered by the psychologist as to an explanation for the misconduct. The history gathered by the psychologist as one inevitably finds is far more comprehensive than in the more succinct sentence assessment report. 14. The family background and demographics are unremarkable. He came from a supportive family reflected I might say in what occurred yesterday in the courtroom. I had intended to resolve this matter yesterday afternoon but as I was about to embark upon the judgement I was informed by the court officer that two ladies present in the back of the court had been given the impression that they would be permitted to speak on behalf of the offender. This was at a point when submissions had been completed. I adjourned to allow counsel's instructing solicitor to speak with the offender, and if necessary the two women so that if it was required they could present evidence. Upon my return 20 minutes or so thereafter I was informed that there would be no further evidence to be called. By that stage it was close to 3.30 and I needed more than the half hour available to deliver judgement and announce my decision and thus the matter was adjourned until this morning. 15. The summary in the psychologist's report confirms the offender's criteria for Alcohol Use Disorder as severe. He had been abstinent though since late 2018 after experiencing major health issues to which I referred. He suffers alcohol related cognitive impairment, against his history of depression, meeting the criteria for major depressive disorder. The assessment by the psychologist placed him at below average risk for sexual recidivism, however the challenge offered in making an accurate assessment arises because of his denial of the offences. 16. He described to the psychologist his chronic abuse of alcohol which has significantly impacted upon his life since 2011. He said he was suffering depressive symptoms throughout the period of the offending and associated his misuse of alcohol with underlying mental health issues. The report suggests at para 8 the following: "Although [BW] categorically denied any inappropriate sexual behaviours towards his daughter, it was considered likely his use of alcohol may have impaired his judgment and reduced his impulse control throughout this period and contributed to the offences. [BW]'s underlying depression and feelings of loneliness may have also led to his use of sexual behaviours as a means of coping with his emotional distress, and he acknowledged he had used sex as a coping tool in the past to manage his mood when sober." 1. The ongoing limitations he represented included reduced libido in recent years. Demographics are discussed in some detail. As I indicated his parents were married for some 50 years at the time of his father's death in 2018. 2. There is nothing in his background it would appear that might have contributed to his present circumstances, at least within the period of his evolution through his formative years. He had some difficulty with literacy including difficulties relating to reading, writing and spelling. He thought he had a specific learning disorder but there was no further information available with regard to that. 3. He started an apprenticeship as a plumber but that did not extend beyond his pre-apprenticeship course it appears. He had unstable employment for the first few years after leaving school. He, in due course, became employed for some 16 years in a distributing and outsourcing company. He left that at the age of 37. He worked in metal fabrication in 2012 but thereafter his employment was erratic because of alcohol and mental health issues. 4. He had a 13 year relationship with the mother of the complainant which came to an end in 2011. The children are said to have been diagnosed as falling on the autism spectrum. He referred to the involvement of Family and Community Services and they have intervened with all of the children it appears. There is reference to his other relationships including one to which was born a daughter now aged 5. FACS has also been involved with that child because of their living arrangements. That relationship ended, it appears, as a consequence of his alcohol use and her mental health issues and he is now in a relationship with someone who he has been seeing for a couple of years. 5. His alcohol use began at the age of 15, its escalation as discussed. He attended Miracle Haven Residential Rehabilitation facility in November 2011. He attended another centre Dooralong Transformation Centre in July 2013. Notwithstanding these endeavours he relapsed to his misuse of alcohol and all of that led to his deterioration in physical health in late 2018 including a diagnosis of small fiber neuropathy as a consequence of Vitamin B12 deficiency, the product of alcohol abuse. 6. He has a history of anxiety and depression. The depressive symptoms and their evolution are described. It is thought that he might suffer from alcohol related brain impairment. It is noted at p 7, para 24: "He described having experienced these symptoms for the past few years, however it was my opinion he had likely only become aware of these symptoms subsequent to reducing his level of alcohol use after experiencing physical health issues from late 2018. [BW]'s reported symptoms, [and past thiamine deficiency] suggest that these symptoms may have been caused by alcohol related brain impairments [ARBI] which commonly impact on memory, executive functioning, and coordination. Of interest, disturbances in mind [including depression], reduced motivation, emotional dysregulation, and changes in sexual behaviours [including the development of sexually inappropriate behaviours and a reduced libido] have also been associated with ARBI's, indicating [BW]'s reported depressive symptoms may have also been exacerbated by his alcohol abuse." 1. The recommendation is that he should be referred to a neuropsychologist for further assessment. 2. His sexual history is then discussed including what appears to be a large number of sexual partners, mostly only in casual relationships using the sex that was available to help him cope with his past. He had some speech difficulties that were observed including a tendency towards slowed and slurred speech. He was assessed psychometrically. He was found to be within the moderate range for depressive symptoms and moderate range for anxiety symptoms and he was assessed on the Static-99R and Stable-2007 instruments for the lower range of risk of recidivism. CONSIDERATION 1. Both parties referred me to authority. The Crown provided me with a copy of R v ND [2016] NSWCCA 103, an appeal by the Crown because of the perceived inadequacy of sentence. The maximum penalty to which that offender was exposed was imprisonment for 25 years with a standard non-parole period of 15 years. The sentence that was imposed by the judge at first instance was replaced with one of four years non‑parole with a balance of two years, the overall head sentence thus being six years. The misconduct alleged was against a victim aged five years and ten months. The offender had the victim sit on his lap. He placed his hand beneath her school skirt and into her underwear and inserted his finger in her vagina. 2. On behalf of the offender, I was reminded of the decision in Scott v R [2020] NSWCCA 81 where a child was victim of cunnilingus of limited duration and extent resulting in a sentence of five years in the aggregate with a non-parole period of two years six months. There was no evidence of penetration in that case; the appeal was against conviction as well as of sentence, the argument in the appeal from conviction focusing upon the extent of the application of the offender's mouth to the child's genitalia and whether that would be sufficient to amount to sexual intercourse as it is now defined to include cunnilingus. I agree with the Crown's submission that that is a significantly less serious case than the matters with which I am concerned and that the range of offending of which the Crown reminded me in the decision to which it referred was less extensive than the misconduct upon which I have to determine sentence. 3. The Crown reminded me of the general principles that relate when sentencing offenders for child sexual assault, and the importance of punishment and general deterrence reflected in the decisions in R v Fisher (1989) 40 A Crim R 442 at p 445 in the judgement of Yeldham J and in RC v R; and R v RC [2020] NSWCCA 76 where Justice Wilson referred to the need for stern sentences, and also R v ND [2016] NSWCCA 103 to where Payne JA referred to the factors of age and the vulnerability of a victim of such tender years requiring appropriate consideration of a stern sentence to impress the misconduct alleged. 4. Both parties acknowledge the need to impose a custodial sentence in this case. Nothing other than that is appropriate and it should be served in custody; I have had regard to s 5(1) Crimes (Sentencing Procedure) Act 1999. 5. I shall identify indicative sentences including non-parole periods before I settle on the aggregate sentence I intend to impose. 6. The Crown acknowledges that there are special circumstances; I am satisfied that there are special circumstances that will allow an adjustment of the custodial component of the sentence to be imposed arising from the challenges with which the offender is burdened, including his physical and psychological issues to which I have referred. 7. The Crown made a point in the course of oral submissions that there is no evidence of sexual gratification and that is so; that is a matter that I have brought to account. However, there can be no conclusion other than the offender's misconduct had a sexual purpose that motivated him in the conduct on each of these occasions. 8. The Crown reminded me of the assessment made in the decision ND ibid at paras 14 and following and 42 and following which I found of assistance in coming to my decision. I agree with the Crown's submission that there is considerable difference between this case and what the Court had before it in the decision of Scott. 9. There are no aggravating factors that are to be brought to account except for the child being under the authority of the offender in the commission of the indecent assault offences. 10. The hypothesis advanced by the psychologist with regard to alcohol related brain impairment could provide an explanation but it is of limited weight overall when one considers the vigour with which the offender denies this misconduct and his assertion that if the child has not fabricated the allegations they have been a construct of her mother and stepfather to cause him detriment. THE SENTENCE 1. Yesterday I convicted the offender of each of the offences and now it is my task to inform sentence. 2. For the offence charged in count 1 of sexual intercourse, I specify a non‑parole period of 4 years and 6 months with a head sentence of 7 years. 3. For the offence of indecent assault in count 2, I specify a non-parole period of 2 years and 3 months with a head sentence of 3 years and 6 months. 4. For the offence in count 3 of indecent assault I specify a non-parole period of 2 years and 6 months and a head sentence of 3 years and 9 months. 5. For the offence of sexual intercourse in count 5, I specify a non‑parole period of 5 years and a head sentence of 7 years and 9 months. 6. I agree that there must be a measure of concurrence in the assessment of the aggregate sentence between counts 1 and 3 but I do not agree that they should be entirely subsumed. Similarly in respect of counts 4 and 5 I agree there should be a measure of concurrence but they should not entirely be subsumed. There will be a measure accumulation between counts 1 and 3 and counts 4 and 5 respectively, and between the two events, the first involving counts 1 and 3 and the second involving counts 4 and 5. I have come to the view that the appropriate aggregate sentence commencing on 16 April 2021 is one of a non-parole period of 5 years and 3 months to expire on 15 July 2026 with a head sentence of 8 years and 6 months to expire on 15 October 2029. * I will repeat those dates for those of you who are making a record of it. The offence in count 1, non-parole period of 4 years and 6 months and a head sentence of 7 years. * Count 2, non-parole period of 2 years and 3 months with a head sentence of 3 years and 6 months. * For count 3 a non-parole period of 2 years and 6 months and a head sentence of 3 years and 9 months. * For count 4 a non-parole period of 5 years and a head sentence of 7 years and 9 months. 1. The aggregate sentence from 16 April 2021 consists of a non-parole period of 5 years and 3 months to expire on 15 July 2026 with a head sentence of 8 years and 6 months to expire on 15 October 2029. 2. The ratio specified in s 44 Crimes (Sentencing Procedure) Act 1999 has thus been compromised. I have chosen to do so upon finding of special circumstances in that this is the first time the offender will spend time in custody, he is bound to experience a more significant level of punishment by reason of the limitations he suffers and he will need an extended period of time on parole for his reintegration into the community. 3. The Crown and the solicitor appearing for the accused were asked if they sought further orders and they announced that they did not. ********** 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: 25 January 2022