R v SM [2021] NSWDC 786

District Court New South Wales

Medium Neutral Citation: R v SM [2021] NSWDC 786 Hearing dates: 19 November 2021 Date of orders: 26 November 2021 Decision date: 26 November 2021 Jurisdiction: Criminal Before: Sutherland SC DCJ Decision: [81]-[90] Catchwords: CRIME – sentence – offender the father of the victim – aggravated sexual intercourse with a person under 16 years – victim had an intellectual disability Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Franklin v R [2016] NSWCCA 319 MRW v R [2011] NSWCCA 260 R v Gavel [2014] NSWCCA 6 R v GWM [2012] NSWCCA 240 R v PGM [2008] NSWCCA 172 R v Slater [2003] NSWCCA 178 R v Tuala [2015] NSWCCA 8 Walsh v R [2015] NSWCCA 83 Category: Sentence Parties: Crown SM Representation: Ms Todhunter (Crown) Ms Feiner (SM)

Solicitor for Public Prosecutions (Crown) Legal Aid NSW (SM) File Number(s): 2021/052227 Publication restriction: There is a publication restriction on the name of the offender and any identifying features.

Judgment 1. SM appears for sentence following his pleas of guilty to acts of sexual assault upon his own daughter. The circumstances of that offence require a non‑publication order with respect to his name by virtue of the necessity to protect the identity of his daughter. 2. I will deal with the individual offences in the course of outlining the narrative of the Agreed Facts giving rise to the offending. In overview, he appears for sentence with respect to four separate occasions of aggravated sexual assault involving anal penetration of his own daughter, one count of attempted aggravated sexual assault, one count of sexual touching as well as an aggravated inciting a person to commit a sexual act. Each of those offences related to his own daughter. An additional substantive offence of common assault predates each of the acts of sexual interaction. 3. The offender is 40 years of age having been born in 1981. He was born in Moree into a family with one sibling, an older brother. I will refer to the detail of his family background when I come to the subjective case. The family moved to different locations in rural NSW as a consequence of his father's employment. He completed his schooling in Cessnock after Year 10 and thereafter undertook an engineering and steel fabrication course at TAFE. He subsequently worked predominantly as a labourer. 4. His first sexual experience was at the age of 14 with a girl of similar age. They were ultimately married in 2007 when he was about 23 years of age. SM and his wife subsequently had a number of children and moved at some stage to a small town on the NSW/Queensland border. The Agreed Facts indicate that the victim lived at a house in town with her parents and with a younger brother and sister. In her Victim Impact Statement, she makes reference to an older sister. It is unclear whether that sister lived with the family at the time of the offending or not. 5. The Agreed Facts indicate that when the victim, his own daughter, was 5, in about 2008, she was diagnosed with autism and ADHD. She has continued to take medication daily before attending school. 6. As a consequence of a medical diagnosis, the wife of the offender was required to travel regularly to Brisbane for treatment. On such occasions she would remain in Brisbane, and away from the family home, for 2 or 3 days. She estimates that she left the family home to attend Brisbane for such treatment on at least 30 occasions. In the absence of her mother, the victim was left, together with the other children, in the care of her father. 7. The first act of criminal conduct which has been charged relates to an occasion in approximately April or May 2019 on which the victim was chastised by the offender. He told her that he was going to smack her with a belt as a consequence. She had not yet turned 16. Following the threat to punish her with the belt, the child ran to her bedroom where she put on extra pairs of pants. When she was subsequently smacked with the belt, she told her father that she had felt nothing. As a consequence, he took her back to her bedroom where her pants and underwear were removed and he "flogged her" with the belt on her bare buttocks. 8. This assault has been charged as a common assault pursuant to s 61 of the Crimes Act 1900 (NSW) and carries a maximum penalty of 2 years imprisonment. It is the first substantive offence in these proceedings (Sequence 8). 9. At some time after this physical assault, the offender changed his behaviour towards the victim and commenced to touch her inappropriately. On some occasions when her mother was away receiving treatment in Brisbane, the victim would be told by her father that she would have to sleep in his bed while her mother was absent. The victim would be required to sleep in her parents' bed wearing a loose fitting singlet and with no underwear. The victim subsequently described feeling overpowered by her father in regard to these demands. 10. In 2019, shortly after the victim had turned 16, the offender called his daughter into the parental bedroom. His wife was absent in Brisbane. He told her that she needed to help him with his "blue balls" because otherwise he would be sore. The victim lay on the bed without any underwear. Her father was naked. He rubbed his penis on the outside of her vagina before ejaculating on her stomach. He then told the victim to go and shower and he joined her in the bathroom. This sexual interaction between the offender and his daughter has been charged as sexual touching contrary to the provisions of s 61KC(a) of the Crimes Act 1900. It carries a maximum penalty of 5 years imprisonment (Sequence 22). 11. Early in 2020, the victim was unwell whilst at school. Her mother came and picked her up from school and took her to a property outside the town where her father was working. The property was approximately 10 minutes' drive outside town. The victim's mother left her for the balance of the day in the care of her father. 12. In the course of his duties, the offender was driving a tractor and ploughing a field. His daughter accompanied him in the tractor. In the course of driving the tractor, the offender asked his daughter to remove her bra. She complied with that request. In due course the offender told his daughter that he wanted to do something. He stopped the tractor and they went into some bush at the side of the paddock which had been being ploughed. He pulled his daughter's jeans and underwear down to her ankles and told her to get on all fours. He then undid his belt, pulled his own pants down and penetrated her anally. He continued until he ejaculated. They then returned to the tractor and he continued his tasks. His daughter stayed with him for the balance of the day until 3 or 4pm that afternoon. 13. This incident has been separately charged as an aggravated sexual assault upon a person under the authority of the offender. Such an offence arises pursuant to s 61J(1) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. Parliament has prescribed a standard non-parole period of 10 years (Sequence 10). 14. On a subsequent day the same year, 2020, the offender took his daughter to the same property where he was working. She recalls a particular incident at the property which she recollected taking place at the pigsty. At that location her father again attempted to penetrate her anally. On this occasion he was not sufficiently erect to achieve penetration. 15. This incident has been charged as an attempted aggravated sexual assault of a person under authority contrary to section 61J(1) of the Crimes Act 1900. The maximum penalty is the same as for the consummated offence, namely 20 years. 16. Later that year, on the Sunday following Christmas 2020, namely 27 December, the victim's mother was absent from the family home. She was working at her employment in the town. The offender went into his daughter's bedroom and sat on her bed. He called his daughter over to him and hugged her around the waist while she stood in between his legs. The victim asked her father if she could take an iPad with her on an upcoming trip to Cessnock. Her father told her: "It's gonna cost you". 17. He then directed his daughter to get undressed and to get onto the bed. He took his own clothes off and rubbed his penis on the outside of her labia while talking to her. After a short period of time, he put a pillow under her back and then penetrated her anally so that she could face him during the anal intercourse. After a short while, he told her to get onto all fours and he again penetrated her. This incident subsequently gave rise to two separate charges. The first relating to the sexual touching on the outside of her vagina was charged as an aggravated sexual touching of a person under authority contrary to s 61KD(1)(a) (Sequence 4). Such an offence, if prosecuted separately, carries a maximum penalty of 7 years imprisonment and a standard non-parole period of 5 years. That offence has been placed on a Form 1 document. 18. The second charge substantively related to the intercourse was a charge of aggravated sexual assault of a person under authority pursuant to the provisions of s 61J(1) of the Crimes Act 1900 (Sequence 14). The charge of sexual touching on the Form 1 attaches to this substantive offence. 19. A further incident of sexual assault between the victim and her father occurred on an occasion that she described in the bathroom at the family home. The incident took place sometime between the beginning of December 2020 and about 13 February 2021. The victim was at home with her father. He called her into the bathroom and told her "be quiet, don't make a sound". He shut the bathroom door and directed the victim to get on all fours. On this occasion he again anally penetrated her for approximately 10 minutes. The Agreed Facts indicate that once he had "finished", which I infer implies when he had ejaculated, he told the victim to get in the shower. 20. This identified incident has similarly been charged substantively as a further aggravated sexual assault of a person under authority contrary to s 61J(1) of the Crimes Act 1900 (Sequence 16). 21. During the school holidays in 2020/2021, between mid-December and the first week of February 2021, the offender took his daughter with him to the same property at which he was employed outside the town. Whilst at the property, he took her to an empty house. He told the victim to give him a blowjob. She refused. He then directed her to get on all fours and on this occasion again penetrated her anus. On this occasion, the offender pulled out and ejaculated onto a rag. He used the rag to wipe his penis and put it into a Coles shopping bag. The offender and his daughter then both got dressed. 22. This further incident of anal penetration has been charged as a further aggravated sexual assault of a person under authority contrary to s 61J(1) (Sequence 15). 23. In February 2021, the offender requested that his daughter send him naked photographs of herself. The victim complied and sent him two pictures which were images respectively of her naked body and a close up of her vagina. 24. The offender complained that "the photos aren't good enough". He told the victim that they "weren't taken properly". The victim took another photo of her vagina which she again sent to her father. 25. The offender then went to his daughter's bedroom door and told her "I want you to send me a photo of your vagina as if I'm about to fuck it." The victim then sent the offender another photo of her vagina with her labia spread apart. The victim later asked her father to sign a note from her school at which time he told her, "That one looks better than the others." 26. The circumstances of this particular incident have been separately charged (Sequence 18) as intentionally inciting the victim to carry out a sexual act towards him, namely to send him the photographs, in circumstances of aggravation namely that she was under his authority. This is an offence contrary to section 61KF(1)(b) of the Crimes Act 1900 and carries a maximum penalty of 3 years imprisonment. 27. The Agreed Facts indicate that the offender repeatedly told his daughter that he would stop. He said, "It will all stop, just a few more times." The victim on occasion responded that she would tell her mother. The offender told her, "What's mum going to do if I go to jail? Where is the money going to come from?" 28. In March 2021, the victim's mother was again required to undergo medical treatment at a hospital in Brisbane. The offender was planning to accompany his wife on this occasion. He told their daughter that he wanted her to accompany them so that they could spend the night together. I would infer from the Agreed Facts that the implication was that she would spend the night with her father in a motel while her mother was undergoing treatment in hospital. 29. The victim was concerned and felt unsafe at the suggestion that she travel to Brisbane. She began to make complaints to her friends and also to her boyfriend at the time. Between 18 and 21 February 2021, she disclosed the offences which had been occurring to a female friend, to her boyfriend, and also to his mother who encouraged her to report the matter to police and assisted her to do so. 30. On 23 February 2021, the victim provided a statement to police. That same day police attended a property at which the offender was working and arrested him. His phone was seized. When asked if he had any questions, he said "No I think I know what this is about". When asked what he thought it was about, the offender told police, "Something that shouldn't have happened between me and my daughter." 31. He subsequently participated in an electronically recorded interview during which he made admissions with respect to the allegations. He said, "I know I've done the wrong thing" and that "I'm 100% to blame." He told police that he felt like a "scumbag" because he "should never have let it happen." He said, "being the adult, I should have known better." In the course of the ERISP, he told police that the reason that he had never had penile/ vaginal intercourse with his daughter was because "I never wanted to be the one to take her virginity." 32. During the interview he also told police of an occasion when he had inserted the end of some anal beads into the victim. He said that on an occasion when they were "playing around", she had found some anal beads in a box on top of a cupboard. The victim had asked what they felt like and he said that he inserted the smallest of the beads into her anus. This act, which he had volunteered, was separately charged (Sequence 17) as an aggravated sexual assault of a person under authority, again pursuant to s 61J(1). It has been placed on a separate Form 1 document which is to be taken into account in dealing with the incident at the empty house on the property (Sequence 15).