R v Childs [2022] NSWDC 659

District Court New South Wales

Medium Neutral Citation: R v Childs [2022] NSWDC 659 Hearing dates: 30 November 2022 01 December 2022 13 December 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Jurisdiction: Criminal Before: Weinstein SC DCJ Decision: See [135] – [138] Catchwords: SENTENCING – plea of guilty – child sexual offences - background of disadvantage – diminishment of moral culpability Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Bugmy v the Queen (2013) 249 CLR 571 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120 Perkins v R [2018] NSWCCA 62 R v Lau [2022] NSWCCA 131 R v Millwood [2012] NSWCCA 2 Category: Sentence Parties: Rex (Crown) Gary John Childs (Offender) Representation: Counsel: A Coulton (Crown) D Wong (Offender)

Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Offender) File Number(s): 2020/0049122 Publication restriction: Non-publication order in respect of the victims or any information that may tend to identify them.

Judgment 1. The offender Gary John Childs, born in 1981, is before the court for sentence for seven offences. They are two counts of sexual touching contrary to s66DB(a) of the Crimes Act 1900 (Crimes Act) (sequences 6 and 7) for which the maximum penalty is 10 years imprisonment and for which there is no standard non-parole period, two counts of indecent assault person under 10 years of age contrary to s61M(1) of the Crimes Act (sequences 10 and 11) for which the maximum penalty is 7 years imprisonment and for which there is a standard non-parole period of 5 years, and three counts of indecent assault person under 10 contrary to s61M(2) of the Crimes Act (sequences 17, 19 and 20) for which the maximum penalty is 10 years imprisonment and for which there is a standard non-parole period of 8 years. The offender pleaded guilty to these offences at Nowra Local Court on 6 May 2022. 2. The agreed facts are as follows: 1. The offender has no prior criminal history. 2. At the time of charging, the offender was unemployed and resided in a camper van in the driveway of his father's home on the South Coast of New South Wales. 3. Previously, Mr Childs was in a relationship with AB. She had moved to South Coast in 2015 with her three children CD (born in 2004), EF (born in 2007) and GH (born in 2009). 4. AB migrated from Europe with the father of the children in 2007 but they had divorced in 2015 at the time she moved to the South Coast. 5. The offender moved into AB's home with her children soon after their relationship commenced in 2015. He then became the stepfather of CD, EF and GH. 6. The offender moved with AB and her children to another address on the South Coast in February 2018. 7. The relationship between the offender and AB ended in May 2021. 8. In July 2021, a Helpline report was received at the Wollongong Child Abuse Unit following disclosures made by AB's daughters CD and EF. CD provided a statement to police on 5 August 2021 and EF was interviewed by police on 6 August 2021. Offence with respect to CD Sequence 19: Aggravated indecent assault - child under 16 years 1. Between 2016 and 2017, when CD was about 12 years old, the family (including the offender, AB and her three children) were watching a movie they had rented. 2. CD was wearing shorts and was seated on the three-seater lounge with blankets covering her. The offender sat between CD and AB. CD's brother and sister were on the other lounge. During the course of the movie, the offender rubbed his hand up and down CD's inner thigh, at times coming close to her genitals. 3. The offender engaged in this type of conduct on a regular basis. Offences with respect to EF Sequence 6: Sexual touching - child between 10 and 16 years 1. During 2019, the offender was reading a bedtime story to EF and her younger brother. They were in EF's bedroom laying on her bed and her brother fell asleep. 2. Whilst reading the story, the offender was rubbing EF's upper thigh with his hand. He then moved his hand and started rubbing her buttocks. EF felt uncomfortable and told the offender she needed to use the toilet. She left the room and went downstairs and told her mother that the offender was touching her. EF was 11 years old at the time. 3. This was not an isolated incident and occurred several times when the offender read bedtime stories to EF. Sequence 7: Sexual touching - child between 10 and 16 years 1. On 28 March 2020, EF was asleep in her bedroom. The offender entered her bedroom, laid down next to her and placed his hand inside her bra. EF woke up to find the offender's hand grabbing her breast. She kept her eyes shut and rolled over onto her side. The offender got up and walked out of her bedroom. 2. EF sent a message to her sister CD who was staying at a friend's house. The complainant told her sister, 'I just woke up to Gary's hand on my tit… he had his hand down my bra.' 3. EF was 13 years old at the time. She told her mother about this incident, but no report was made to police and the offender continued to live in the family home. Complaint 1. EF disclosed the offending on a number of occasions from 4 March 2017 to her mother AB. AB confronted the offender on a number of occasions, but he denied any wrongdoing. 2. In May 2021, the offender and AB separated, and the offender moved out. AB questioned the offender about the disclosures made by her daughter. The offender replied, "You don't understand. It's all about love. Your girls are an extension of you." Arrest 1. At about 11.15pm on 20 August 2021, the offender was arrested and charged with the matters now before the court. Contact between KL and EF 1. IJ, the former wife of the offender, made contact with AB in 2015 when she became aware that the offender had commenced a relationship with AB. She warned AB that the offender had had a sexual interest in her daughter KL. The offender convinced AB that this was untrue. 2. Following the separation of the offender and AB and the disclosures of EF, AB told EF that she had been warned by IJ about the offender's sexual interest in KL. EF told her mother that she wanted to speak with KL. 3. Following a conversation between KL and EF, KL provided a statement to police on 1 August 2021. Offences with respect to KL 1. KL was born in 1996. Her mother, IJ, was 16 years old at that time she was born. KL has never met her biological father. 2. The offender met IJ in 1999. In 2000 they moved into a house with KL. 3. The offender and IJ had a son MN in 2001. At that time KL began calling the offender 'Dad.' KL enjoyed his company as he was very involved, he always played with her and he would take her swimming and fishing at the river. He took on the role of KL's father. 4. In 2005 IJ and the offender had a second son OP. 5. In 2002 IJ and the offender married. KL was 6 years old and had started Kindergarten. 6. In 2003 IJ and the offender purchased their first house. KL was about 7 years old at the time. 7. In 2005, at the beginning of year 4 when KL was 8 years of age, she moved to a school in suburban Sydney. Sequence 20: Indecent assault of victim under the age of 10 years 1. KL was about 8 or 9 years old when the offender started coming into her bedroom when she was about to go to sleep. He would only come in when her mother was not home. He would tickle her back initially, and then progress to tickling the back of her legs and thighs. 2. As time went by, the offender asked KL to take her pants off (leaving her underwear on) and he tickled her bottom and the inside of her thighs with his hands. He ultimately would ask her to remove her underwear. 3. One night when KL was about 9 years old, the offender came into her bedroom before she we went to sleep. The offender told her to stand up and asked her to take her pants and underwear off. She complied and laid back down on the bed on her stomach. 4. The offender knelt down next to the bed and moved her legs slightly apart. He tickled her bottom with his hands before moving to her genitals. He ran his fingertips softly over the outside of her genitals and moved his fingers from her bottom back down to her inner thighs and then back to her genitals again. 5. This type of activity took place on a regular basis over a 2-year period when KL's mother was absent from the home, or when she was reading. On occasion the offender would become angry when KL asked him to stop, and he would leave the room. Context evidence 1. On a weekend at about the time of KL's 9th or 10th birthday, a family birthday party was held at KL's home. Her mother's side of the family were in attendance. 2. After she opened presents, KL took them up to her room. The offender followed her into to her bedroom. He asked her to try on some new clothing she had received in front of him. She said, "No, I don't feel comfortable with you watching me. Go out and I will get changed and come back out and show you." The offender said, "I'm your dad and you shouldn't feel uncomfortable getting naked in front of me." He was sitting on the corner of her bed against the wall, and he would not leave the room. KL complied and tried on various outfits while the offender watched. Sequence 10: Indecent assault of victim under the age of 16 years 1. When KL was about 9 or 10 years old, she went into the bathroom to use the toilet at about 5 to 5.30am. This was the only toilet in the house. 2. The offender was in the shower getting ready to leave for work. 3. The door was locked with a latch and KL knocked on the door. The offender let her in. She used and flushed the toilet and pulled her pants up. At the same time the offender turned the shower off and got out. He locked the bathroom door. KL said, "I'm just leaving now, sorry." The offender said, "No stay." He pushed her shoulders downwards and she fell to her knees. 4. The offender was naked, and he placed his penis at the side of KL's face. She turned her face away, and the tip of his penis touched the side of her face. He reached down and pulled both her arms up, placing her hands on the side of his naked body. He moved her hands with his hands as a guide, up and down the side of his body whilst his penis was moving against the side of the skin on her cheek. 5. After a time, KL stood and said, "I'm leaving now, I'm going back to bed." The offender allowed her to leave the bathroom. 6. This type of activity took place in the bathroom on more than 50 occasions. It stopped when KL was in year 7 (12 or 13 years old) after she got her first boyfriend. She was terrified to use the toilet when the offender was in it and she would hold on if she could. On one occasion she defecated in her pants in her bedroom. She was about 9 or 10 years old at the time. Her mother questioned her about this, but KL was too scared to disclose the reason to IJ. Sequence 11: Indecent assault of victim under the age of 16 years 1. The accused and IJ separated in 2007 when KL was 10 or 11 years old. The offender stayed in the family home but was sleeping in KL's bedroom and sometimes on the lounge for a few months. During this time, KL slept either in her mother's bed or in her brother's bunk bed. 2. One morning she was asleep in MN's bedroom on the bottom bunk. She was about 10 or 11 years old. In the early hours of the morning, whilst it was still dark outside, she woke up to the sound of the shower running. The bathroom shared a wall with MN's bedroom. 3. A few minutes later, KL heard the shower stop and the offender came into the bedroom. She was pretending to be asleep and was laying on her stomach with her head facing towards the wall. Her right hand and arm were outside of the blanket and slightly hanging over the edge of the mattress. She felt the edge of the offender's towel touch her arm and felt the tip of his penis touch the palm of her hand. 4. The offender softly rubbed the tip of his penis up and down KL's arm and hand and at the same time he was running his lips across the back of her neck and on her left ear. KL felt what she then believed was water on her hand. She now understands it was semen, as it was sticky. KL's brother MN was asleep in the top bunk the entire time. A few minutes later the offender left the room. 5. This type of incident occurred a number of times. Sequence 17: Indecent assault of victim under the age of 16 years 1. On KL's 13th birthday in 2009, the offender moved out of the family home. He had been bringing women to the family home and this had caused issues. 2. The offender moved in with his sister. KL and her brothers would visit the offender every second weekend and they would sleep over on those weekends. The boys slept in the loungeroom on the lounge and the offender had his own room. His sister had her own room and when she was not home for the night, the offender made KL sleep in his sister's room. 3. On a night in late 2009 or early 2010 (when KL was 13 years old) she was at her aunt's house in her bed. The boys were asleep in the loungeroom. The offender came into the room and laid down next to KL on the bed. He started kissing her shoulders and neck. He tickled her back and arms. He tried to force his hands between her legs. KL said "Stop, I'm trying to sleep." 4. KL tried to push the offender off and he pushed himself on top of her. He put his body in between her legs and pushed his penis against her genitals. She was wearing underwear at the time. He started grinding and humping whilst laying on top of her. She tried to push him off, but he was too heavy. 5. The offender pulled her shirt up and started biting and sucking on her breasts. He called her nipples "mosquito bites", a comment that he had made multiple times before. She told him to stop, get off her and that she wanted to go to sleep. He persisted and told her it was just a bit of fun. Complaint 1. When KL was 13 years old, she disclosed the sexual abuse to her aunt and her mother. KL and her brothers had spent the weekend with the offender at his sister's home. Her aunt was discussing that she had been sexually abused when she was younger. 2. KL said, "You don't know what Gary has done to me". Her aunt and her mother were shocked, and both asked, "What do you mean?" KL said, "Don't worry about it, I don't' want to talk about it." 3. When KL and her mother were in the car, IJ asked KL if she wanted to talk to the police about the abuse and KL began to panic. She said that she did not wish to talk to the police. 4. Later that night, the offender arrived at the family home. He asked KL to talk to him outside. They sat on the front steps, and he said, "Do you know how serious this is what you said, you know what it's like to grow up without a father, you don't want your brothers to go through that?" KL did not reply. He said, "You don't want your brothers' father to go to jail do you?" KL did not reply. 5. From that point the sexual abuse stopped (apart from one more inappropriate incident when she was about 16 years old). She asked her mother if she could stop visiting the offender with the boys and her mother agreed. 6. In November 2013, when KL was 17 years old and she was in year 11, she told her school counsellor some basic information about the sexual abuse. The counsellor was a mandatory reporter and she notified police. 7. KL was reluctantly interviewed by police at her school on 14 November 2013. Whilst she responded truthfully, she did not give police the complete version of events. At that time the offender was still living in the family home. She was also studying for the HSC, and she advised police she would not give evidence at that time. 8. At about Christmas 2013, the offender left the family home. KL, her mother and her brothers have not seen the offender since. When IJ discovered that the offender was in a relationship with AB, she sent AB a message warning her that the offender had sexually abused KL. AB replied that the accused had denied this allegation. 9. In July 2021 MN received a message via social media from AB indicating that her teenage daughters had disclosed that the offender had sexually abused them. On 31 July 2021, KL added EF as a Facebook friend after EF asked to talk to KL and they messaged each other. 10. Some days later, MN placed comments on some photographs, to the effect that the offender liked touching young girls, which were posted on the Instagram account of the offender's father. 11. On 24 July 2021, KL received an Instagram message request from the offender under the username of 'gary.john81.' KL believed it was the offender as his middle name is John and he was born in 1981. The message read: "I've learned so many things in my life the wrong way. A needle in my vein was the highest of my priorities when we met. All I really know is everything ended in such a terribly sad and painful manner. I'm not asking for your forgiveness. That to me is a personal journey for each and every person to discover within themselves if they choose it. I am deeply sorry that I wasn't what and who you needed me to be. I let you down tremendously and it has haunted me for every day of my life since. I am embarrassed and ashamed for you to know the version of me that you do. I hope that your life is wonderfully abundant in joy and happiness and freedom to be who you want to be. Gary." 1. KL replied (and then blocked the offender from messaging her further): "I also have learnt a lot of things in my life since I first told everyone what you did to me. Like how to not let people manipulate me, I am 25 years old now, not 10. I see straight through this and I know who you really are no matter how hard you want to try and hide it. You cannot blame everyone else for your actions, you are an adult and have full control over all the decisions you make. You choose to hurt people because that is what you enjoy to do, what gives you satisfaction. You enjoy sexually abusing females, grooming young boys to be like you, and to hit children when they don't do what you want. I don't want your sorry, nor do I need it. You mean nothing to me and haven't for a long, long time. You shouldn't be embarrassed and ashamed for me, you should be embarrassed and ashamed for yourself. You should be steering clear of any relationship with any women or children for their own protection. That's what you would do if you really cared at all about what you have done." 1. On 31 July 2021, KL called police and arranged to make a statement. The offender was later charged with offences with respect to KL.