District Court New South Wales Medium Neutral Citation: R v CB [2021] NSWDC 800 Hearing dates: 23 November 2021 Date of orders: 23 November 2021 Decision date: 23 November 2021 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: An aggregate term of imprisonment of ten years with a non-parole period of five years and six months: at [65]. Catchwords: CRIME — Child sex offences — Sexual intercourse with child <10 — Sexual intercourse with child >10 <14 — Indecent assault SENTENCING — Aggravating factors — Home of victim or any other person — Presence of child — Use of violence SENTENCING — Mitigating factors — No record of previous convictions SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Circumstances of offence — Deterrence — General principles — Maximum penalty — Moral culpability — Multiple offences — Crushing sentence — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Age of offender — Special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 Elturk v The Queen [2014] NSWCCA 61 KT v R [2008] NSWCCA 51 McLaren v The Queen [2012] NSWCCA 284 R v KNL [2005] NSWCCA 260 Rakielbakour v DPP [2020] NSWSC 323 Category: Sentence Parties: Regina (Office of the Director of Public Prosecutions) CB (Offender) Representation: Mr C Young (Crown Prosecutor, Office of the Director of Public Prosecutions Ms T Evers (Counsel for the Offender) File Number(s): 2018/1523 Publication restriction: STATUTORY NON-PUBLICATION APPLIES Any matter which may identify the complainants or identify any minor witnesses, including the accused's name: s 578A Crimes Act 1900; s 15A Children (Criminal Proceedings) Act 1987 Judgment 1. CB was found guilty by a jury of 13 counts after a trial in Newcastle in July and August 2021. He expresses no remorse and continues to assert that he is not guilty of the offences. All of the offences relate to him engaging in indecent and sexual acts with three victims who were the foster children of his mother. The offending occurred between 2004 and 2014. 2. The offender was arrested on 7 February 2018. 3. With the final orders there will be a schedule setting out the statutory provision under which each count was brought, the maximum penalty, were applicable, the standard non-parole period, the age of the victim, the age of the offender at the time, a brief description of the offending conduct and my finding as to objective seriousness of each offence. See Annexure 1 (97828, pdf) 4. In short, the offender was found guilty of the following offences: * Count 1, an offence contrary to s 61M(2) of the Crimes Act 1900 of indecent assault of a child under ten. The offence carries a maximum penalty of ten years with a standard non-parole period of five years, but it is not applicable because he was under 18 at the time. * There are nine counts (Counts 2, 4 – 8, 10 – 12) contrary to s 66A of the Crimes Act 1900, of sexual intercourse with a child under ten. The offences carry a maximum penalty of 25 years imprisonment with 15 years standard non-parole period. However the that standard non‑parole period only applies to counts 11 and 12 which occurred were the only offence that were committed while the offender was over the age of 18. * There is one offence (Count 9) contrary to s 66B of the Crimes Act 1900 of attempt sexual intercourse with a child under ten. The offence carries a maximum penalty of 25 years imprisonment. * One offence (Count 3) contrary to s 66C of the Crimes Act 1900 of sexual intercourse with a child between 10 and 14 years of age. The offence carries a maximum penalty of 16 years imprisonment. * One offence (Count 13) contrary to 66C(2) of the Crimes Act 1900 of aggravated sexual intercourse with a child between 10 and 14. The offence carries a maximum penalty of 20 years imprisonment. Facts on Sentence 1. There is no challenge by Ms Evers to the facts proposed by the Crown as consistent with the jury's verdict. They can be summarised as follows: 2. The three victims were siblings, KB, BC and JB. KB, a girl, was born January 2001, BC, a girl, born November 2001 and JB, a boy, born April 2003. They were taken from the care of their parents in about 2003 by DOCS and began living with their biological grandfather. He was in a relationship with KW. The offender is KW's son from a previous relationship. 3. The offender and the three victims lived with KW for various periods between 2003 and 2015. The offender was eight to ten years older than the victims and would, on occasions, be responsible for their supervision in the absence of their mother. 4. Consistent with the jury's verdict, from 2004 to 2014 the offender had a sexual interest in the three victims and a tendency to act on that sexual interest by engaging in sexual conduct with the children while they were under the authority of his mother. Count 1 1. Count 1 occurred when the offender was about 11 years old and KB was between three and five. Each reference to the age of the offender is as Ms Evers submitted found favourably to the offender as being at the younger end of the age range. They were out near the milking sheds and the offender asked KB to touch his penis, she did not want to do. He said, "just do it" and he took hold of her hand and put it on his penis on the outside of his pants. KB ran back to the house. 2. CB had been taught about inappropriate touching by his mother at the time and despite his age he knew the act was seriously wrong when he committed it. Count 2 1. Count 2 occurred when CB was 16 and KB was eight or nine. It was when CB's partner was pregnant and one night he went into her bedroom, which she shared with BC. CB asked her to go to the bathroom, he pulled down his pants, exposed his penis and told her to suck it. She said she did not want to but he said "do it". He made her perform oral sex on his penis. BC came knocking on the door about five minutes later. He told her to go away. KB stopped performing oral sex and she left the bathroom and returned to her bed. Count 3 1. Count 3 occurred when CB was 19 and KB was about 11 or 12. During the Christmas holidays in 2012 at Port Macquarie KB and the offender were under a blanket on the bed. He slipped her pants down and attempted to insert his penis into her anus. She grabbed his penis and said no. He kept attempting to put his penis inside the victim's anus, eventually penetrating her anus to some extent. It really hurt the victim and she pushed him away, before getting out of the bed and leaving the room. This was the final incident involving KB. Count 4 1. A number of offences relating to BC commenced with an incident when CB was 14 and BC was between five and eight. He pulled his pants down in his bedroom. BC said "what do you want?" He told her to come here and he grabbed her head and forced it on to his exposed penis and forced her to perform oral sexual intercourse on him for a number of minutes, the act ended when the victim pulled away from the offender. Count 5 1. Count 5 occurred when BC was again eight or nine years old. He was supervising her at Port Macquarie. He pulled her on to a bed and began to digitally to penetrate her vagina. she attempted to push and kick him away and said "that's all right, this will be our secret", she punched him on the nose which caused him to bleed and she left the room. Count 6 1. Count 6 occurred when BC was eight or nine, shortly before August 2010. They were riding on a motor bike. CB asked her to take her pants off, she refused, he then put his hand under her shorts and then digitally penetrated her. She dropped her mobile phone and used that as an excuse for the assault to cease. That was the final incident with BC. Count 7 1. There were then a number of incidents involving JB. The first, count 7, occurred when JB was three to six years old and the offender was 14. They were living at Singleton 2. The offender pulled down his pants and said to JB, "suck my penis". He took hold of JB's head and pulled back towards his penis. JB kept his mouth closed. The offender said "open your mouth or I'll hit you in the head". JB performed oral sex on him for a number of minutes. Count 8 1. Count 8 was around a week later in the lounge room. No one else was there, he took hold of JB's head. JB said he did not want to do it, and he hit him on the head. He then pulled JB's head in towards him and forced JB to perform oral sex for a number of minutes. JB stopped and ran out the door. Count 9 1. Count 9 was an attempt, and occurred about three days after count 8 when the offender woke JB in his bed and said "suck my penis". the offender had his penis exposed. The offender pulled JB's head towards his penis, JB refused and pulled his head away and the offender went to his own bed. Count 10 1. Count 10 occurred at a time when JB was between three and six, about two weeks after count 9 in the bedroom. The offender entered the room and forced JB to perform oral sex on his penis for a long time. When he stopped he pulled up his pants and left the room. Counts 11 & 12 1. Counts 11 and 12 occurred when JB was about eight or nine. The offender sat next to JB, took his pants down and said "suck this" and JB said "no, go away". He took hold of JB's head, brought his penis close to his mouth, forcing him to open his mouth and put his penis inside his mouth and made him perform oral sex for a number of minutes. He then said to JB to stand up. He stood behind JB and pulled his pants down, CB put spit on his hands and rubbed the spit on his penis and JB's anus. JB pulled his pants up and the offender hit him and said "don't". The offender then had penile anal sexual intercourse with JB. It hurt and he pulled away. The offender then put his penis back into JB's anus and continued to have sexual intercourse with him. JB pulled his bottom away again, pulled his pants up and ran to his own room. 2. The offending in relation to JB was not limited to the five incidents outlined above. The sexual offending by the offender towards JB included fellatio and anal intercourse occurred on several other occasions during this period. Count 13 1. The final offence, count 13 occurred when JB was ten or 11. The offender was smoking cannabis, he took JB to his room and he gave him a bong to smoke, which made JB feel funny. He then made JB perform oral sex on him. This only stopped when the offender ejaculated. This was the last offence involving JB. 2. The disclosure came about in January 2016 when JB to disclosed to his father that the offender had made him give him oral sex and raped him. 3. In early January 2016 BC was staying with her aunt and she overheard a conversation between BC and her sister KB in which BC said "Do you want them to find out what he has done to us?". 4. As a result of this, their aunt, spoke to CB who started crying and said "when we were living with Nan, [CB] used to touch us". After JB and BC left to live with their parents MB found a diary in which BC had made disclosures about what the offender did to her. A police investigation was commenced, and the offender was arrested on 7 February 2018. 5. He has served a significant period in custody totalling 703 days punctuated by a period on bail between 20 September 2019 and the date of the verdict on 6 August 2021, when he did not contest a detention application by the Crown. 6. It is agreed that 703 days being taken into account would mean that the term of imprisonment to be imposed, as conceded by Ms Evers, as the only appropriate outcome, would commence on 23 December 2019. 7. He has not previously been in custody and his record includes only matters of larceny and dishonestly obtain property by deception dealt with by a s 10 bond in 2012 and a contravene AVO dealt with by fine in 2016. 8. I have victims impact statements (VIS) of KB, BC and JB. BC's was read to the Court. In the case of the primary victim, the VIS must relate to any personal harm suffered by the victim as a direct result of the offence pursuant to s 26 of Crimes (Sentencing Procedure) Act 1999 (applicable to proceedings commenced prior to 27 May 2019) and the statements described the undoubted harm that the offending caused to the victims and reflect the terrible and serious and all too common consequences of this type of offending. Offender's Subjective Case 1. The subjective case for the offender is contained in a report of a psychologist following an interview in custody in October 2021. The report contains nothing as to the offending and sets out an unremarkable personal background which is consistent with evidence that emerged in the trial. The Crown does not challenge it as a reasonable basis upon which to proceed to sentence. 2. In short, CB is now 29 years of age. He moved around a lot after his parents separated when he was one, spending most of his life living in Housing Commission properties. He described his upbringing as rough. His stepfather was a gambler, an alcoholic and he would regularly physically abuse him and his brothers and emotionally abused his mother due to has gambling issues. 3. Evidence was also lead today and submissions made as to the behaviour of the three victims, that, in my view that has no real relevance to the sentencing process. 4. He went to school, including senior high school from years seven to 10. He described himself as the class clown and an attention seeker. He worked in various jobs at a pizza shop, transport company and a furniture store. He also worked in construction and completed a certificate in warehouse operations and automotive service technology. 5. He has two sons aged ten to 12. He met their mother when he was about 16 or 17. 6. He is taking prescription medication, Mirtazapine. There was a suicide attempt reported in 2013. He is assessed as being an average risk of recidivism and the psychologist says that his experience and abuse and instability during his childhood appear to have impacted upon his ability regulate his emotions and appropriately cope with difficult lift experiences and thus led to the development of substance abuse and dependency. 7. In his early life, these issues would likely be exacerbated by his report of difficulties with inattentiveness during youth and would further have contributed to feelings of anger and participation in impulsive behaviours. 8. There is a history of adolescent drug use which was a coping strategy. It was thought that he satisfied the criteria for a substance use disorder at the time of the offending. He was asked as to whether he would participate in the Deniers Program which was recommended by the psychologist and the psychologist also suggested that he participate in the intensive Drug and Alcohol Treatment Program while in custody. It was suggested that he would benefit from access with a psychologist for support for his mood and anxiety and would likely benefit from cognitive behavioural therapy. 9. The psychologist concluded that having been in the community for an additional seven years without being charged or convicted of a further sexual offence that suggests his risk of recidivism is now very low. 10. The maximum penalties and where applicable the standard non‑parole periods are very important yardsticks in sentencing for this type of offending together with, of course, the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 11. General deterrence is a very significant factor to be taken into account. The abhorrence that all right-minded people would have about sexual crimes against children is a matter to also be taken into account. It is important that the Courts indicate very clearly how seriously such offences are viewed and the sentence to be imposed must meet the obligation to vindicate the dignity of the victims, to express the community's disapproval of the offending and to afford such protection as can be afforded by the State to the vulnerable against the repetition of the offending. 12. Where a child has been hurt and offended against in a sexual way, retributive sentences are required because retribution is a notion that reflects the community's expectation that the offender will suffer punishment and particular offences will merit severe punishment. Retribution of course is often used interchangeably with deterrence as a proper sentence marks the Court's view of the seriousness of the crimes and lets other wrongdoers know that retribution will fall upon them if they commit similar crimes. 13. There is of course an absolute prohibition on any sexual activity with a child. The law is strictly enforced and is intended to protect children from the physical and psychological harm to be caused by premature sexual activity. It follows that every act of sexual interference with a child is serious and the guidance offered by the maximum penalties and the standard non-parole period make that very clear. 14. When assessing the objective seriousness of sexual offences against children the actual character of the act involved and all the facts and circumstances are important, and while there is no hierarchy of seriousness in the kinds of sexual intercourse, or the forms of forced sexual intercourse, the form of forced sexual intercourse does not necessarily determine an objective seriousness. It remains important and of significance is the degree of physical contact, the time over which the acts occurred and were there any harm, hurt, or injury, physical or psychological resulted. Other matters bearing on the assessment include the relationship between the child and the offender, the age difference between them, together with the age of the victim relative to the age encompassed by the offence. In short the younger the child the more serious the offence as the Court said in R v KNL [2005] NSWCCA 260. 15. Having said all that, a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crimes committed in the light of their objective circumstances and when one considers sentences for a number of offences, the total criminality must be taken into account so that the Court arrives at a sentence which is just and appropriate to the totality of the offending. 16. The findings that I will make as to the objective seriousness of each offence will be set out in the table to be attached. In broad terms I accept the brief summary put by the Crown in relation to each offence in written submissions which has not been the subject of any significant challenge by Ms Evers, with the exception of some challenges as to characterisation, and in those cases I have taken into account and modified the Crown submission as to objective seriousness having regard to the matters put by Ms Evers. In assessing objective seriousness for each I note the following, 17. In relation to the offence against KB, * Count 1 – the Crown notes a level of planning but there were no threats or violence involved and the offence was of short duration. * Count 2 – the victim indicated resistance to the fellatio but the offender used a degree of force to obtain compliance. The offence occurred in the home of the victim. * Count 3 – again, there was some initial resistance from the victim and the anal intercourse caused pain to the victim. 1. In relation to the offences against BC, * Count 4 – again the victim demonstrated some initial resistance but he forced her to fellate him for a number of minutes. The offence occurred in the victim's home. * Count 5 – she was trying to push and kick the offender away. He held her down and the conduct only ceased after she punched him. It also occurred in the home. * Count 6, the motorbike incident – the conduct only ceased after the victim dropped her mobile phone. 1. In relation to the offences against JB, * Count 7 – involved a threat of violence namely "open your mouth or I'll hit you in the head" and the offence occurred in the victim's home. * Count 8 – also occurred after resistance and hitting him on the head. It also occurred in the home of the victim. * Count 9 also involved the victim refusing an attempted fellatio. It was not of long duration. The offence occurred in the home of the victim. * Count 10 involved a degree of force, but there was no violence or threats. The offence occurred in the home of the victim. * Count 11 involved a degree of force again but no violence or threats and it also occurred in the home of the victim. * Count 12 was instance of anal intercourse of short duration. The offence involved some resistance and the offender hit the victim to ensure compliance when the victim attempted to get out of the situation. The offender grabbed his hair and continued the offence. The offence also occurred at home. * Count 13, the final count, involved the offender having giving cannabis to JB to make compliance easier. There were no threats or violence. The offence occurred in the home. 1. The Crown notes aggravating factors that had been referred to in the submissions, namely only in certain cases the offence involved the actual threat of use of violence, the offence was committed in the presence of a child under 18 years of age where, the other children were present and the offence was committed in the home of the victim as I have indicated. 2. Although the offender was under the age of 18 for all counts except 3, 11, 12 and 13, his conduct would have been dealt with by law as they would, even if he was a child as they were serious indictable offences. However they would have been dealt with in the Children's Court, and the Crown accepts that this can be taken into account in the sentencing process. The summary of McClellan CJ at CL in KT v R [2008] NSWCCA 51 outlines the principle relevant to sentencing young offenders and is pertinent. His Honour identifies that considerations of general deterrence and retribution are, in most cases, of less significance for children than when sentencing an adult offender but they cannot be completely ignored. The emphasis should be on rehabilitation over general deterrence and retribution may be moderated where the young offender has conducted himself in the way an adult might and has committed a crime of violence or considerable gravity. If the immaturity of the offender is a significant factor in the commission of the offending the criminality is less than for an adult. The weight to be given considerations relevant to an offender's youth diminishes the closer the offender approaches 18. 3. The Crown accepts the offender should be afforded some leniency as a result of his modest history. The Crown accepts that relevant to the need for specific deterrence is that the last offence occurred in 2014. Sentencing must be conducted pursuant to s 25AA of the Crimes Act 1900 and must take into account the trauma of sexual abuse on children as understood at the time of sentencing. In short, the Crown submits that there are three separate victims who were victim of serious offending occurring over a substantial period of time and accepts that a degree of concurrency is required to avoid a crushing sentence. 4. In making the findings as to objective seriousness that I propose I have taken into account what Ms Evers put from the judgment of the Court in Elturk v The Queen [2014] NSWCCA 61 at [33]-[34], quoting McLellan's CJ at CL consideration of Muldrock in McLaren v The Queen [2012] NSWCCA 284 at [29], namely that, The decision in Muldrock does not, however derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question, which remains an important task in the sentencing process. That this assessment is also sometimes referred to as the "objective seriousness" of the offence perhaps contributes to the misconception. 1. As the Court said in Elturk, that quotation "aptly captures the relevance of moral culpability in the sentencing process." 2. I take account of the extreme youth of the offender at the time of six of the counts, namely when he was between 11 and 17. He conceded in evidence that he knew what he had done in relation to Count 1 was "seriously wrong". That concession should be assessed in the context of an adult concession about what he fully appreciated at age 11. 3. I take account of the significant difference in the maturity of a child between the ages of 14 and 17 as is pointed out by Ms Evers. As I have indicated the absence of further offending for a period of some seven years is a matter to be taken into account when considering retribution and deterrence. I acknowledge, as Ms Evers puts, that understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be fully developed until the early to mid-twenties. 4. His difficult background is taken into account in Bugmy v The Queen (2013) 249 CLR 571 terms, as Ms Evers submits. 5. The psychologist assessed major depression and severely low mood, impacting on his daily living including suicidal ideation. 6. It is difficult to assess his prospects of rehabilitation given his inability to acknowledge the offending found by the jury and his apparent unwillingness to participate in programs. It may be concluded that his prospects of rehabilitation are best described as guarded, notwithstanding the significant period of custody he faces. 7. I do, of course, take into account as Ms Evers puts and as is clear from evidence in virtually every sentencing case during the COVID pandemic that time in custody during the pandemic has been particularly onerous involving restricted access to work opportunities, restrictions on visits, more periods of lockdowns and the risk of contracting COVID and the limitations on capacity to protect oneself and control the spread of the virus. As Hamill J said in Rakielbakour v DPP [2020] NSWSC 323 the pandemic creates a challenge for the criminal justice and penal systems given that gaols are particularly susceptible to the rapid spread of the virus. Inmates are subject to more onerous conditions of incarceration and that hardship in custody is likely to continue for the foreseeable future. 8. His evidence is that he is confined to cells for lengthy periods, he has only been able to obtain one dose of the COVID vaccine. COVID is having a significant impact on his mental health as his cell is adjacent to new arrivals. I accept there is a clear basis for a finding of special circumstances given his need for ongoing treatment and the fact this is his first time in custody together with the conditions of incarceration during the pandemic. 9. In short, he should be intensely supervised for a significant period on his release and I accept that his prospects of rehabilitation would be assisted by a longer period on parole. 10. I have provided by email the orders that I am about to make together with the schedule of the offences. 11. The orders that I make are: 1. The offender is convicted of each offence, 2. The indicative sentences are: 1. Count 1 one year, 2. Count 2 three years and six months, 3. Count 3 five years, 4. Count 4 two years and six months, 5. Count 5 three years, 6. Count 6 and 7 three years each, 7. Count 8 two years and six months, 8. Count 9 two years, 9. Count 10 two years and six months, 10. Count 11 three years and nine months with an indicative non-parole period of two years, 11. Count 12 five years with an indicative non-parole period of three years and 12. Count 13 three years and six months. 1. I impose an aggregate sentence of imprisonment of ten years commencing 23 December 2019. 2. I impose a non-parole period of five years and six months expiring 22 June 2025. 3. I find special circumstances. ********** 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: 05 July 2022