District Court New South Wales Medium Neutral Citation: R v Barnes [2023] NSWDC 33 Hearing dates: 15 December 2022 2 February 2023 Date of orders: 2 February 2023 Decision date: 02 February 2023 Jurisdiction: Criminal Before: Montgomery DCJ Decision: (1) You are convicted. (2) You are sentenced to a term of imprisonment comprising a non-parole period of 3 years; and of a total term of 4 years and 3 months. (3) The sentence commences on 8 October 2022 and expires on 7 January 2027. (4) The non-parole period expires on 7 October 2025. (5) The offender will be eligible for consideration for release to parole on 8 October 2025. (6) I direct the offender accept the supervision and guidance of the Community Corrective Services and obey all reasonable directions of that service. (7) I recommend the offender be directed to sex offender programs for which he is assessed as suitable. Catchwords: CRIME — Child sex offences — Intentionally touch sexually child >10 <16 — Intentionally carry out sexual act towards child >10 <16 — Circumstances of aggravation — Crimes sentencing — Comparable Local Court and District Court JIRS statistics Legislation Cited: Crimes Act 1900 (NSW) ss 66DB(a), 66DE(1)(a), 66C(2) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A(2), 21A(3)(i), 21A(5A), 28, 44(2A), 53A Cases Cited: Baines v R [2016] NSWCCA 132 Bonwick v R [2010] NSWCCA 177 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 EG v R [2015] NSWCCA 21 Hili v The Queen (2010) 253 CLR 58 at [18]; [2010] HCA 45 Katie Smith v R [2022] NSWCCA 88 Peiris v R [2014] NSWCCA 58 R v Allpass (1993) 72 A Crim R 561 R v Fuller [2022] NSWCCA 203 R v George Peterson (pseudonym) [2020] NSWDC 122 R v Isaacs (1997) 41 NSWLR 374 R v LL (pseudonym) [2022] NSWDC 208 R v Martin (1981) 2 NSWLR 640 R v NC [2020] NSWDC 547 R v Neil Duncan [2022] NSWDC 543 R v RB [2022] NSWCCA 142 Category: Sentence Parties: Regina (Crown) Christopher Barnes (Offender) Representation: Counsel: Ms M Knowles (Crown) Mr T Edwards SC (Offender) Solicitors: DPP (Crown) Powerhouse Law (Offender) File Number(s): 2020/317606 2021/009674 Judgment R v BARNES PRINCIPLE 1. As trial judge, I must determine the facts upon which I should assess the degree of culpability of the offender in order to sentence him. This has been achieved by my reviewing the evidence and determining, upon the criminal onus, what facts I should act upon. I have been assisted by submissions made by the parties. The view of the facts which I adopt for the purposes of sentencing must be consistent with the verdicts of the jury: R v Martin (1981) 2 NSWLR 640; R v Isaacs (1997) 41 NSWLR 374 at 377 – 378; Cheung v The Queen (2001) 209 CLR 1; HCA 67 at [14], [57] and [58]. In Martin at [4] – [5], the Court of Criminal Appeal said: [4] "… a second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt… [5] there is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender… however, the practical effect of [4] above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender….." 1. In performing this task, I bear in mind that generally, it is not possible to determine how a jury has reasoned. My task is not to ascertain the thought processes of the jury and infer the basis of their verdicts but rather to find facts consistent with each verdict: R v Fuller [2022] NSWCCA 203 at [9] per Adamson J; [105] per N Adams J. It follows that unless a particular piece of evidence is logically crucial to the prosecution case, the jury did not have to accept that particular evidence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [7] per Gleeson CJ, Gummow and Hayne JJ. In Cheung, the High Court approved the summary of general principles stated by the NSW Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374 at 377 – 378: see also R v RB [2022] NSWCCA 142 at [21]. 2. These reasons adopt pseudonym initials for each of the complainant/victims. The victim in Counts 1 – 4 will be referred to as AB. The victim in Count 5 will be referred to as CD. OFFENCES 1. Following a jury trial, the offender was convicted of the following offences: Offence Section and Act Maximum Penalties Count 1: between 1 June 2018 and 31 December 2020, did intentionally touch sexually AB, being a child then under the age of 16 years. Crimes Act 1900 (NSW), s 66DB(a) DC: 10 years imprisonment LPC: 93710 LC: 2 years imprisonment and/or a Fine of: $11,000 (100PU) Count 2: between 1 June 2018 and 31 December 2020, did intentionally carry out sexual act towards AB, being a child under the age of 16 years, in circumstances of aggravation, namely, AB was under the authority of Christopher Barnes. Crimes Act 1900 (NSW), s 66DE(1)(a) DC: 5 years imprisonment LPC: 93733 LC: 2 years imprisonment and/or a Fine of: $5,500 (50PU) Count 3: between 1 June 2018 and 31 December 2020, did intentionally touch sexually AB, being a child then under the age of 16 years. Crimes Act 1900 (NSW), s 66DB(a) DC: 10 years imprisonment LPC: 93710 LC: 2 years imprisonment and/or a Fine of: $11,000 (100PU) Alternative to Count 4: between 1 June 2018 and 31 December 2020 at Guildford West in the State of New South Wales, did intentionally touch sexually AB, being a child then under the age of 16 years. Crimes Act 1900 (NSW), s 66DB(a) DC: 10 years imprisonment LPC: 93710 LC: 2 years imprisonment and/or a Fine of: $11000 (100PU) Count 5: on 26 October 2020, did intentionally sexually touch CD, being a child then of or above the age of 10 years and under the age of 16 years. Crimes Act 1900 (NSW), s 66DB(a) DC: 10 years imprisonment LPC: 93710 LC: 2 years imprisonment and/or a Fine of: $11000 (100PU) 1. There are no Form 1 matters. 2. There are no standard non-parole periods applicable for the offences. 3. The jury found the offender not guilty of Count 4 in the indictment as presented. That was a charge of sexual intercourse (Crimes Act 1900 (NSW), s 66C(2)). Penetration was an element of that Count. The jury found the offender guilty of the statutory alternative count of sexual touching, being an event not involving penetration (Crimes Act 1900 (NSW), s 66DB(a)). This verdict strongly indicates that the jury did not accept, at the burden of beyond reasonable doubt, the evidence of penetration contained in the second, 28 April 2021, Child Interview of AB. In the first Child Interview of AB made 12 January 2021, AB did not describe penetration. In that first Child Interview AB gave evidence upon which the Crown relies in relation to each of Counts 1 – 4. I am satisfied that the Crown's approach to fact finding for the purposes of sentence, adopted in its document "Proposed Facts on Sentence" within the Crown Sentence Summary bundle (Exhibit A), of relying on AB's first Child Interview and evidence in the trial but not AB's second Child Interview given 21 April 2021, is correct. 4. The offender is Christopher David Barnes, DOB 29 January 1987. He is presently 36 years of age. 5. At the time of the offences, the offender owned and operated a martial arts gymnasium (the "gym"), in Sydney, where he taught Taekwondo and Jiu Jitsu, including to children. Both victims AB and CD were pupils in his classes. The gym ran classes in the afternoons/evenings during the week and during the day on Saturdays. The offender was known as Master Chris to his students. AB (pseudonym initials) 1. AB was born on 18 March 2009. When he gave his first Child Interview to police on 12 January 2021, it was about 2 months before his 12th birthday. He had been a pupil in martial arts classes conducted by the offender at the gym, for some years. OFFENCES AGAINST AB 1. Between about June 2018, when AB was aged 9, to December 2020, when he was aged 11, he attended the classes four or five days a week but over time made excuses to his parents about not wanting to go. 2. On occasion, the offender would take AB to the bathroom during classes because AB became injured in the class. The offender generally tended to pupils' injuries by wiping away blood, applying ice and other basic first aid, in the vicinity of the bathroom and within the bathroom. A refrigerator and first aid box were located immediately outside the bathroom door. On the whole of the evidence of AB, CD and another pupil MK (pseudonym initials), innocent injury treatment, including the use of towels for bloody injuries, involved that treatment also occurring within the bathroom on occasion. At some stage, in relation to AB, during such provision of first aid, the offender's conversation turned to AB's increasing maturity, growth, weight and body hair. Those conversations may have initially been legitimate life coaching by the offender but at some stage, it progressed to evolve into the offending. 3. The Crown does not submit that planning was an aggravating factor (Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n)). The defence concedes that the offender abused AB's trust. In the environment of marital arts discipline, in which the offender was referred to by all pupils as "Master Chris", the offender was in the special relationship of trust and authority with the victim. AB became uncomfortable as the conversations turned to his growth and maturity. The defence concession is appropriate, in the circumstances of the offender being an adult male in his thirties exercising his authority as the martial arts teacher of such young children, including AB. 4. Counts 1 and Counts 2 – 4 involve two separate occasions. The dates are imprecisely identified by the evidence, but the offending occurred within a period of less than two years. The Counts 1 – 4 offending was opportunistic, in that the offender took advantage of that position of authority and relationship of trust when tending to AB's injuries in the bathroom. In the context of those circumstances, the offending on those two occasions did not arise out of the blue. 5. At a time, stated by AB to have been more than one year and approaching two years before his first Child Interview, he sustained an injury during training whilst sparring with another pupil in a martial arts class. The injury was to his leg. They both fell to the floor and said words like "ah, it hurts.". The offender said to AB "I'll check the thing on your leg on the break" and when the break from training arrived, the offender said to the class "go back to the mat and play with the pool noodle. Play something while I'm talking to AB about his leg.". At the offender's direction, AB went to the bathroom with him. The offender asked if AB was okay and whether he needed an icepack. In the vestibule within the bathroom, outside of the shower and toilet cubicles and where there was a bench for clothing and washing hands, the offender attended to him, having closed the door between the bathroom and the martial arts facility. 6. At the offender's direction that he do so for the purpose of inspection of injury, AB removed his shorts. In evidence, AB indicated by placing his right hand to the inside of his right thigh, not at his groin, the location of the injury. He said it was at his thigh. AB said that there was no touching on that first occasion but thereafter the offender repeatedly spoke to him of personal growth and enquired of hair on his body. The offender told AB not to discuss with his parents their conversations of personal growth. This conversation of personal growth occurred on a second occasion when AB was injured while sparring in a class and the offender guided him to the bathroom. The conversation of personal growth made AB feel uncomfortable. Count 1 1. The Count 1 offence occurred when AB had achieved his yellow belt. AB and the offender were in the bathroom after AB was injured. The offender told AB to sit down on the bench so the offender could talk to him. AB said that the offender "just touched my [pubic] hair on top of it". 2. AB did not tell his parents and continued until 11 January 2021 to not tell his parents because he feared they would be disappointed in him. 3. Counts 2, 3 and 4 occurred on another occasion after AB was injured during class. AB had injured his leg. AB indicated with his hand where his leg was injured and it was not near his groin. The offender directed AB to go to the bathroom. This occurred near the end of a break in training. The offender organised for the children in the class to start playing with pool noodles. The offender told AB to take off his shorts so that he could see the injury and the offender touched AB on his legs. 4. When in the bathroom vestibule, the offender asked AB to show him his penis. AB was scared. AB could not really speak so he shook his head to communicate no. The offender responded with words to the effect that he would show AB his penis or AB could show his own penis. AB answered "no", after which the offender answered to the effect "fine, I will show you mine then". During that conversation AB was still wearing underwear. The offender then asked for AB to show him "a bit of yours or I'll show you mine". Again, AB answered "no" and kept shaking his head to indicate "no". 5. The offender was in a crouched position in front of AB when the offender reached to his own pants band and started pulling it down a bit, which pressured AB to agree to show the offender "a little bit" of his penis. The offender then asked to see a little bit more and AB again answered "no" and shook his head to indicate "no". The offender said words to the effect "can you pull down your pants, please.". This conversation was accompanied by the threat that the offender would show his penis if AB did not display his own. 6. The offender did not lower his own pants band far. AB saw nothing of the offender's genitalia. AB did remove his underpants. Count 2 1. For this offence, the offender started touching the outside of his own pants at the location of his own penis. The offender did not grope or masturbate his penis. Count 3 1. The offender then touched the tip of the head of AB's penis. In evidence AB demonstrated the touch with the tip of one index finger touching the tip of his other index finger with a small tapping/stroking action. Count 4 1. Then the offender told AB to turn around and to pull his "butt back" meaning to part his buttocks. 2. The offender commented that AB had a lot of hair growing there, which AB denied. AB said that he opened his buttocks with his own hands on each. AB demonstrated, by a waving motion of his hand, the nature of the offender's touch of his bottom. His hand was horizontal and waved up and down. He felt what he thought was the offender's finger touching or trying to "squish in", just once, without penetration of his anus (T 151 – 152). 3. The offender was not trying to "squish in" in the sense of attempting to penetrate AB's anus. The "squishing in" was a stroking or waving motion of the offenders hand coming within the cleft between AB's buttocks and touching skin to skin in the proximity of his anus. 4. Following the occasion involving the Counts 2, 3 and 4 offending, AB continued not to tell his parents because he thought they would be upset. He tried to pretend that he had school assessments in order to avoid having to go to the gym. His parents made him attend because they did not know what had happened. From some time in about 2019, AB's parents became alert to his making those excuses. The evidence does not establish an actually calculable reduction of AB's attendances at the gym. 5. On 26 October 2020 another student, CD, made a complaint that the offender had touched him. 6. On 11 January 2021 AB was at a shopping centre with other children when he saw a man looking at him. He told his mother that he wanted to go home. Later that evening AB walked past his parents' bedroom in an apparently hysterical state. He repeatedly stated to them "you're never going to forgive me. I can't forgive myself". At first, when asked by his mother, he denied that anyone had done something to him. After further questioning as to who had hurt him, AB wrote down the name "Master Chris" on a piece of paper. AB told his parents that the offender had taken him to the bathroom where he had "been touched" by the offender. Police were contacted and attended the residence. The next day, 12 January 2021, AB gave his first recorded Child Interview. He gave the second recorded Child Interview, to which I referred in the early part of this judgment, on 28 April 2021. AB's mother and the DPP had communicated about the element of penetration of the Count 4 offence on the Indictment between those two recorded Child Interviews. ARREST 1. The offender was arrested in relation to the offences against AB on 12 January 2021. The offender was cautioned and was recorded, on Body Worn Video, to say that he had "never been alone with a child at any point. Not at any point." The offender was offered a recorded police interview (ERISP) but exercised his legal right to decline. OFFENCE AGAINST CD Count 5 1. The jury were informed that the specific act for this Count was that the offender kissed CD on the cheek near his mouth whilst CD was in his underwear or naked. 2. The context of the teacher/pupil relationship discussed earlier prevailed in relation to the Count 5 offending against CD. 3. In his Child Interview on 27 October 2020 CD said that at a time before the subject offending, whilst training for karate under the direction of the offender, and in a group class, he complained to the offender of sunburn and of not feeling well. He said that he had become sunburnt when attending a swimming pool with his family. CD told the offender that he felt tired and sick and said to the offender "Chris I don't feel very well because I just got hurt". CD said that he could not train because of his sunburn. The offender said to CD words to the effect "come, let me check" and they moved from the gym floor into the bathroom, the offender having said to the group of children in the class to take a break for a minute or two. In the bathroom, CD removed his singlet and the offender touched him, just once on each of his shoulders, leg and stomach. The offender advised CD to the effect of "if you feel like more worse" he should go to the doctor. The clear evidence of CD was that he removed only his singlet on that occasion. He told police during his Child Interview on 27 October 2020, that there was nothing about the experience of that first occasion of the offender inspecting his sunburn in the bathroom which caused him to feel uncomfortable and that there was nothing which seemed strange about the offender's inspection of him. 4. A subsequent occasion of the offender inspecting CD is the subject of the Count 5 offence. The event occurred on 26 October 2020, the day preceding CD's Child Interview. 5. The Child Interview is therefore the record created when those events were freshest in the complainant's mind. CD answered: "it, is the same from a month ago but like, he didn't touch my stomach and I didn't take anything off. I, did but, except for my underwear and like….". CD took off his shirt, his shorts and his singlet but his underwear remained on. 6. On the occasion of the offence, CD was in group training at the gym and had not complained to the offender of his sunburn. When a break in training was taken, the offender told CD that he would check him again saying in effect "Come let me check your body" because "it's very important". The offender said words to the effect "take you clothes off", CD answered, "no its okay, I feel better" and he told the offender that there was no sunburn. The offender then repeated words to the effect "take them off". CD then removed his shirt and his shorts. On the whole of the evidence, CD did not take his underwear off. The offender, then touched CD "just a little bit" on his shoulder and his leg. In the recorded Child Interview, CD indicated the location on his leg. It was not near his groin. There was only one touch to the left shoulder and one touch to his leg. The evidence contained no description of massaging or groping at those places when they were touched. Then the offender kissed CD on his left cheek near his mouth twice. The kisses were of short duration. This occurred in the bathroom of the gym. The bathroom door to the gym was a bit open and the offender was positioned such that he was blocking the way for somebody to open it. The door kept opening slightly and shutting slightly. The offender left the bathroom, leaving CD to put his clothes back on and returned to training the children in the class. 7. The class finished at about 6:40 pm. CD's father had been waiting in the carpark. After CD entered the car, his father asked him why he was late. CD did not look normal and did not want to speak. CD's father thought something was wrong. CD told him that there was a secret between him and the offender, his trainer. CD's father encouraged CD to tell him the secret. CD told his father that the offender saw his body and asked CD to take off his clothes in the bathroom. CD's father asked him if he took his underwear off and CD answered in the affirmative. CD said that he was touched on the legs and kissed once or twice in between the corner of his mouth and nose. CD told his father that the offender had checked his body before after CD had been to the swimming pool. CD told his father on that occasion all of his clothing except for his underwear had been taken off. 8. In October 2020, CD had informed his father that he did not like attending the martial arts classes, but his father could not find out why he had lost interest. Records of CD's attendances at the gym do not, in my opinion, establish an actual or significant reduction. In any event, the first occasion of sunburn checking was described by CD to police as not to have made him feel uncomfortable and the occasion of the offending occurred the day he informed his father of it. In relation to the occasion of the offence, the offender instructed CD "keep it secret." but did not tell CD not to tell his parents. 9. On the whole of the evidence the offending at the second inspection of CD's body was opportunistic. The offender took advantage of the trust which the first inspection installed in CD and abused his authority to ask CD to remove his clothing, with which request CD complied, except for his underwear. 10. Police arrested the offender in relation to offences committed against CD on 6 November 2020. He was cautioned and said on Body Worn Video that he had "not touched anyone". He declined to participate in a recorded police interview (ERISP). OBJECTIVE SERIOUSNESS 1. On the whole of the evidence, there is no suggestion of violence or physically forceful coercion of either victim. The offender manipulated the young victims by opportunistic abuse of his position as "Master Chris", their martial arts teacher. Count 1: Sexual Touching of AB s 66DB(a) Crimes Act 1900 (NSW) 1. At the time of this offence AB was of about 10 years of age and therefore in the lower age range for this offence. The actual touching was just on top of his pubic hair. On the evidence the touch was momentary. There was no evidence of prolonged touching or of touching which involved playing with or fondling of the pubic hair. The circumstances of the offender's authority as "Master Chris"; martial arts trainer, and of the offender having taken the opportunity to offend whilst AB was away from the other pupils and adults within the gymnasium facility add to severity of the offending. In my opinion, given the range of conduct to which s 66DB(a) would apply, I find the objective seriousness of the Count 1 offending to be in clearly below mid-range for offending of this type but not in the lowest part of that range. Count 2: Sexual Act toward AB s 66DE(1)(a) Crimes Act 1900 (NSW) 1. In my opinion, a matter of significance in the assessment of objective seriousness of Count 2 that is that the offender's purpose in the specific act was to pressure and induce AB to remove his underpants. He repeatedly asked AB to show his penis whilst AB repeatedly declined. It was the threat of seeing the offender's penis which ultimately caused AB to remove his clothing to expose his penis to the offender. 2. A significant matter, in my opinion, weighing toward seriousness of the offence is that it occurred in the bathroom, with the door closed and away from the pupils and adults in the gymnasium, which environment must have added to sense of vulnerability for AB. Whilst the time of the offending is not precisely known, on the evidence it occurred in the lower part of the age range for offending of this type. 3. The evidence does not precisely describe the duration of the time during which the offender placed his own hand on top of his pants at the location of his penis but that act and threat to AB was not momentary. It was of short duration but only because AB exposed his penis. 4. In my opinion, the objective seriousness of the Count 2 offending falls toward the mid-range for offending of that type. Count 3: Sexual Touching of AB s 66DB(a) Crimes Act 1900 (NSW) 1. This offending occurred on the same occasion as the Count 2 offence. The contextual circumstances involved both AB's youthful trust of the offender and the offender's authority as "Master Chris", the martial arts teacher. In my opinion, the best description on the evidence of the touching was the demonstration by AB of using the tip of one finger to tip of another finger indicating that the offender used the tip of a finger with a slightly tapping/stroking movement, to momentarily touch and stroke the tip of the head of AB's penis. This was skin to skin contact involving the most sexual location of AB's anatomy, being the tip of the head of his penis. The offender did not more play with or fondle AB's penis. 2. In my opinion, the Count 3 offending falls toward the mid-range for offending of this type. Count 4: Sexual Touching of AB's backside s 66DB(a) Crimes Act 1900 (NSW) 1. This offence occurred on the same occasion as the Count 2 and Count 3 offending. It involved the same contextual circumstances of both trust and authority, and young age of AB as for Count 3. In the course of the offending, AB was directed to open the cleft of his own backside by the offender. AB complied. In my view that coercion adds gravity to the nature of the offending. Skin to skin touching was proximal to AB's anus. The offender's motion was a waving or stroking of his hand. Whilst there is no evidence of the duration of the offending touch, AB's evidence impressed me as meaning it was not momentary and lasted perhaps some seconds. The touching involved that particularly intimate and private location of AB's anatomy. 2. In my opinion, the objective seriousness of the Count 4 offending falls toward the mid-range for offending of this type but was slightly lower than for Count 3 because the location of the touch proximal to the anus is somewhat less intimate than head of penis. Count 5: Sexual Touching of CD s 66DB(a) Crimes Act 1900 (NSW) 1. At the time of the offending CD was 10 years of age and therefore in the low range of age of victim for this offence. 2. The offender took CD to the bathroom, away from the other children and adults about the gymnasium and whilst the door was not closed, it was only a bit open, and the offender was between CD and the door. The specific act found by the jury was the kissing of the cheek near the mouth. The jury were directed in the Elements Sheet in terms of whilst CD was "in underwear or naked" because CD's evidence was confusing as to whether or not he was in either of those states of undress. I find, and it is consistent with the jury's verdict to so find, that removal of CD's underwear is not a fact established beyond reasonable doubt. Consistent with the verdict, the two kisses to CD's cheek was sexual given the surrounding circumstances of the offender requesting that he undress, and touching him on the shoulder and leg after CD had informed the offender that there was no sunburn there for inspection. 3. In my opinion, the objective seriousness of the Count 5 offending was in the low range for offending of this type. There is no submission to the contrary. SUBJECTIVE CONSIDERATIONS 1. The offender was in his early 30s at the time of the offending. He has enjoyed a stable and prosocial family upbringing. He achieved stable employment. He has no history of substance use issues or antisocial behaviours. He continues to enjoy the support of his family members. These and other circumstances are set out in the report within Exhibit 1 of Ms. North, forensic psychologist, dated 5 September 2022. Ms. North interviewed the offender on only one occasion. He was unvaccinated and therefore the interview was conducted by audio visual link. She administered the Static-99R actuarial assessment for recidivism. The result indicated a Level 3 Average Risk. Ms. North commented that the risk factors for that actuarially based assessment related to social rejection, lack of intimate relationships and emotional identification with children. She said that these factors would be potential targets for future dynamic psychological treatment. 2. Ms. North's report and the comments made by the several character witnesses within Exhibit 1, confirm that whilst the offender maintained his innocence, he did at the same time having expressed his respect for the criminal justice process including the verdicts by the jury. 3. The offender is the second born of three sons. His parents remain married. His father remains the principle economic provider to the household. His parents have enjoyed a stable marriage of over 40 years. Prior to his incarceration, all three brothers continued to reside in the family home, none of them having ever married or produced children. There are significant health issues which seriously diminish the quality and opportunity of life of each of his mother, father, and elder brother Robert. I will return to those. 4. The offender achieved a UAI in the 90 percentiles at his Higher School Certificate in 2004. He was the school dux. He commenced a double bachelor's degree in Education and Science but discontinued his tertiary studies in 2007 due to financial reasons. It was in late 2007 that he commenced employment with Fitness First, achieving promotion to Sales Manager before his departure upon being made redundant in 2021. At that time, he already owned and managed a gymnasium business with his older brother Robert. He first established a Taekwondo school in mid-2009 and continued to teach martial arts until the index offences. These offences have caused the closure of his business. 5. Ms. North assessed the offender as having "a limited social network outside of his immediate family". His engagement, outside of family, is through colleagues in Taekwondo and with members of his church. Prior to his incarceration he engaged mainly with friends online, spent most of his free time with his family and particularly caring for his ill mother. The offender told Ms. North that he had never been in a serious relationship with another person, having only a few dates during his late adolescence. He has never engaged in sexual intercourse despite reporting to Ms. North that he was sexually attracted to females. 6. The offender has a history of asthma and back pain resulting from injuries suffered at sport. Currently his blood pressure requires monitoring. He has a history of headaches. 7. Ms. North assessed the offender as of low risk of self-harm. He reported to her his experiencing some difficulties adapting to the custodial setting including concerns for his physical safety, particularly given the type of offence, despite being in protective custody. Ms. North considered an appropriate diagnosis to relate to a Schizoid Personality Disorder, based on her observation of his detachment from social relationships, lack of interest in intimate relationships, restricted range of affect and lack of social connections outside of his family. She considered that his personality disorder, if confirmed on future assessment and formal diagnosis, may constitute a contributing factor to his offences because research indicates that social rejection and loneliness are factors amongst the sexual offending population. Nothing in Ms. North's report persuades me that the offender is of a personality disorder or suffers a psychological illness which informed his offending such as would reduce his criminal culpability. 8. It is his first experience with full-time imprisonment. 9. He informed Ms. North that his main concern is for the impact of his custodial sentence on his parents and brothers both emotionally and financially, particularly given the serious health issues suffered by them, except for his younger brother Peter. 10. Ms. North assessed that the offender would benefit from engaging in offence specific treatment and recommended that he be referred for further assessment in relation to his need for that treatment. On the basis of her assessment, whilst incarcerated, the offender should be referred to the Sex Offender Programs available. 11. Detail of the offenders family circumstances and of the regard in which he has been held in the community are set out in the following documentary evidence: Affidavit of his mother Shelly made 8 December 2022 and letters from his father Stephen, younger brother Peter and older brother Robert. From outside of his family, letters have been read from Ms. Khoudair, who has known the offender for twenty years, Ms. Roach who has known the offender for twenty years and whose niece, from the age of six years, was taught Taekwondo by him, Ms. Spiner (undated) who has known the offender for nine years and the offender is godfather of her children and was best man at her wedding as well as training her children in martial arts, Ms. Chalouhi (undated), occupational therapist and a friend from school days and past student of the offender in martial arts training, and Mr Pollard, who met the offender when Mr Pollard was a manager of a McDonalds store at which the offender worked from 15 years of age and who has known the offender for twenty three years. Those character references describe the offender as a calm and caring person of professional habit and manner and for whom the offending is entirely outside of the authors' observation of his character. 12. Turning to the situation of the offender's family, which is the subject of his concern; it is apparent that the offender was the secondary financial supporter of the family and a principal carer of his seriously ill mother. The offender's mother requires 24 hour care because she suffers a range of seriously debilitating illnesses, amongst which are breast cancer, heart murmurs and spinal lesions. The offender's mother is unable to rise from a chair on her own and needs help to get out of bed. She requires assistance with showering, to get dressed and to comb her hair presentably. The offender's mother frankly states that her oldest son Robert Barnes had been her primary carer but in May 2022 he was diagnosed with colorectal cancer, and he has since undergone intense radiotherapy, chemotherapy, colonoscopy and most recently, on 30 November, surgical removal of a large portion of his large intestine. At the time of hearing, Robert was fitted with a stoma bag. Sometime in the next twelve months he will be assessed as to whether or not he will have to continue with a colostomy bag. Robert's letter confirms those circumstances. Robert is no longer able to continue as his mother's primary carer. 13. The closure of the gym business, consequent of the subject offending and the offender's incarceration has resulted in increased financial pressure on the family due to the loss of income to the family. The offender's father Stephen, by letter dated 8 December 2022, confirmed that his wife Shelly does not qualify for Centrelink support and that the family has a significant home loan in consequence of which, following the loss of financial support contributed by the offender, he has increased his work load to six full days per week, totalling an average of fifty seven hours, for which work he commutes three hours per day. He has had to extend his intended retirement age from 67 years to 75 years of age. Stephen has suffered for many years from and is treated for major depression. 14. The offender's younger brother, Peter, who was the offender's assistant instructor at the gym has had to take increasing amounts of time away from work in order to care for his mother and brother Robert at home. He has also had to defer his university studies. The extra income he has been earning has gone toward the family expenses, mainly medical and groceries. Consideration 1. Because the offender has chosen to remain unvaccinated, whilst incarcerated he is not permitted in-person visits. He has remained in contact with his family via audio visual link. In my opinion, the difficulties which the offender reported to Ms. North concerning his experience with incarceration and protective custody and that he is not entitled to in-person visits whilst he remains unvaccinated, are not special circumstances of hardship entitling him to mitigation of sentence. Nor do I consider his physical health issues to equate to a special circumstance requiring mitigation of sentence or special consideration. They are matters with which Justice Health can deal. 2. The offender's insistence upon his innocence and therefore that he has not expressed remorse for his offending, is not contradicted in any statement by him or from the evidence within Exhibit 1 expressing his concern for harm suffered by the complainant children. In my opinion, those are not seriously aggravating factors. Those who have provided references for him describe him as a caring and kind person. In the circumstances of his insistence upon his innocence, there is no proper basis to infer that he has a general disregard for harm caused to children by sexual assault. However, the offender is not entitled to any mitigation because there is no expression of remorse: s 21A(3)(i). 3. I accept the following submission as put by the Crown in relation to application of s 21A(2)(k): [7] Being in a position of trust or authority is one of the elements for the sexual touching offences, namely Count 1, Count 3, the statutory alternative to Count 4 and Count 5 and thus may be taken into account for those offences. [8] Being under the authority is an element of Count 2 and the Crown does not seek the application of this aggravating feature to that Count. 1. The Crown does not submit that any other aggravating feature under s 21A(2) applies. As I have said, the Crown does not submit premeditation or planning in relation to any of the offences. 2. I have observed that the offender opportunistically took advantage of the children, not only vulnerable because of their age but because of the teacher/pupil relationship in relation to the Count 1 offending against AB and the Count 5 offending against CD. At some stage the treatment of injuries (AB) and sunburn (CD), in the bathroom whilst away from the other children and adults progressed to reprehensible conduct. With AB, discussions of personal growth and development was manipulated by the offender in the course of the commission of Count 1 but to a greater extent in the process of the Count 2, Count 3 and Count 4 offending. The specific act of the Count 2 offending (for which the offender is to be separately sentenced from the Count 3 and Count 4 offending) was obviously manipulative. I have described as a threat the "show me yours" and "I'll show you mine" statements whilst placing his hand on the outside of his pants at the location of his penis. 3. Whilst there is absence of real remorse, in the circumstances of his claim of innocence, it does not, in my opinion, fully deplete the offender's prospects for rehabilitation. Of itself, it does not avail him a finding of positive prospects of rehabilitation. It is suggestive of a failure to take responsibility for and to accept accountability for his offending. 4. The offender does have significant other incentive not to reoffend. That incentive is to, as he had done for a long time, care for his family both by the provision of physical care for his ill mother and by provision of financial assistance to the family. Given the health of his father and most recently his elder brother, that incentive will have increased because the family needs his support even more than before. That Ms. North recommends the offender attend Sex Offender Programs, despite being aware of his claims of innocence, in my opinion also weights in favour in prospects of rehabilitation. The offender recently achieved the age of 36 years. But the offender's lack of remorse and contrition weigh against his rehabilitative prospects. His present experience of conviction and of incarceration will likely impress upon him his vulnerability when released for the freedom as a law abiding citizen, to care for his family. 5. The offender's otherwise good character and lack of previous convictions, in my opinion, should not be taken into account as a mitigating factor. This is because, in the circumstances, I am satisfied that the offender's good reputation in the conduct of his operation of the gym was of assistance to the offender in the commission of the offences (Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5A)). 6. AB's mother read a statement, admitted under Crimes (Sentencing Procedure) Act 1999 (NSW), s 28, without objection. There was no victim impact statement read by or on behalf of CD. AB's mother's statement did not include information relayed by her from him. Rather, it embodied her perceptions of the emotional and psychological harm suffered by him including, sleepless nights, screaming and crying, being emotionally withdrawn and repeatedly stating "why me, why me". This earnest statement of observations of AB which are readily acceptable, does not describe consequences of a psychological or emotional nature beyond the very significant disruption to behaviour which the courts readily accept as within the expected range of harm to victims in consequence of this type of offending. In this regard I accept the Crown's submission referring to AB's first emotional state of reaction during informing his parents of the offending. His father described him as "like a broken kid, like he wasn't right" and said that he was pulling at his hair and hysterical. 7. When reporting the offending to his father, CD also demonstrated immediate emotional impact. He was observed by his father to be not like himself at the time. 8. The law recognises that child sexual assault offences are likely to cause long term consequences of a psychological nature for the victim: R v Allpass (1993) 72 A Crim R 561 at 565. As in Allpass, here there is no expert opinion evidence of psychological harm in relation to either AB or CD. But the absence of such expert reporting does not dispel the reality of the extreme emotional reaction of AB when reporting the events, the emotional reaction of CD when reporting the events, or the risk of long-term harm. 9. Pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A an appropriate sentence must provide adequate punishment and be such as to prevent crime by deterring the offender and other persons from committing similar offences, be in the interests of protecting the community from the offender, promote the rehabilitation of the offender and make him accountable for his actions whilst denouncing the offending conduct and recognising the harm done to the victims and the community. I agree with the Crown submission that punishment, deterrence (both general and specific) and denunciation remain significant considerations in this case. I agree with the Crown submission that the difficulties to be experienced by the offender's family members by reason of his incarceration do not rise to the level of being exceptional such as to entitle him to leniency. It is important to send a message to those that sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment: EG v R [2015] NSWCCA 21 at [42] per Hoeben CJ at CL (Harrison and Hulme agreeing). 10. A significant consideration is the defence submission that on account of the jury having found the offender not guilty of the principle Count 4 charge of sexual intercourse with a child between the age of 10 and 16 years under s 66C(2), the maximum penalty for which offence is imprisonment for 20 years, the trial of the five offences for which the offender was convicted, could have been disposed of in the Local Court. In support of this submission, the defence relied on the Exhibit 2 file note of a conversation between an attorney in the employment of the DPP and AB's mother. The note records that during their conversation on 23 April 2021, it was stated that "…we are considering withdrawing the charge of sexual intercourse (61J) and instead charging sexual touching for the same act and proceeding in the Local Court. Explained the difference was proving penetration." In the trial, the jury did not find penetration and brought in a verdict of guilty on the Alternative Count. 11. In my opinion, the file note does not even purport to be evidence of a decision made by the Department of Public Prosecutions. It is not more than a record of information provided to AB's mother in the ongoing course of the prosecutorial consideration of how to proceed. The file note cannot provide a fetter on the exercise of the Court's sentencing discretion. In any event, it is well established that it is for prosecuting authorities, not courts, to decide who is to be prosecuted and for what offences in which court: Baines v R [2016] NSWCCA 132 at [13] per Basten JA. 12. The defence concedes that the Count 2, 3 and 4 offending falls toward the mid-range of objective seriousness: Defence Written Submission MFI S1. The Crown submits that the Count 2, 3 and 4 offending could fall above mid-range: T 42. 15. I have determined the objective seriousness for each of those counts, considered separately, to fall toward the mid-range for offending of those types. 13. The Crown response to the defence submission that all five counts could have been disposed of in the Local Court, is "You couple that [the objective seriousness of Counts 2, 3 and 4] with the fact that there are five counts and that there are two separate victims. I submit it is not a forgone conclusion that this could only be appropriately dealt with in the Local Court.": T 42. 15 – 18. 14. When determining the appropriate sentence for each offence, whether or not it could have been dealt with summarily is a relevant matter to be taken into account. It avails me to observe that whilst I am not bound by the jurisdictional limit for the offence imposed on the Local Court because the offender was tried in this Court on indictment (see District Court and Local Court Maximum Penalties set out above), it is appropriate to have regard to that Local Court limit if in relation to the offence, it could have been disposed of in that Court. That is, in terms of the statutory maximum penalties being "goals posts". However, at most that is a circumstance to be taken into account, depending on the subjective and objective criminality of the offender: Bonwick v R [2010] NSWCCA 177 at [41] – [43]. 15. Counsel for the defence with reference to JIRs statistics, put that for offending under s 66DB(a), for which offence the offender was found guilty in relation to Counts 1, 3, 4 and 5, in the District Court the average sentence is 42 months imprisonment and in the Local Court 17 months imprisonment: T 32. 14 – 21. Further, that of the 119 cases in the Local Court statistics, 53.8% of sentences were for imprisonment. Sentences for that offending in the District Court are 90% custodial. For offending of the Count 2 type under s 66DE(1)(a), JIRs statistics are based on only five Local Court cases and show a 20% imposition of custodial sentence. In the District Court statistics involving only 2 cases, show 100% imprisonment. See consideration of the correct approach by Leeming JA (with whom Button J and RS Hulme AJ agreed) in Peiris v R [2014] NSWCCA 58 at [85] – [95]. 16. In my opinion, as a matter of principle, the measure of punishment and its severity, whether imposed by a District Court Judge or a Local Court Magistrate, except where there is a statutory difference of jurisdiction, should not be different for the same offending. I raised this with the parties and neither party disagreed: T 31. 40 – 32. 3. I understand this approach to be consistent with that of the Court of Criminal Appeal in Peiris. 17. Particulars of cases the subject of the JIRs statistics for the Local Court, are not available to me. In R v Neil Duncan [2022] NSWDC 543, the offender was sentenced for offending under s 66DB(a) in regard to three child victims. The offending involved skin to skin touching of the female victims' breasts and for the extended period of up to 5 minutes. Other offending involved skin to skin touch of the female child's genitals, including the offender moving his fingers around. Amongst the offending, indicative sentences of 18 months to 30 months were disclosed and the ultimate sentence of 5 years imposed pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A comprising a non-parole period of 2 years and 6 months. In R v George Peterson (pseudonym) [2020] NSWDC 122, the male offender was sentenced for offending under s 66DB(a), involving his fondling a 15 year old boy's penis for 5 minutes. The indicative sentence was 2 years and 7 months. In R v LL (pseudonym) [2022] NSWDC 208, the female adult offender pinched the 15 year old female victim on the bottom in a motel swimming pool and was sentenced to a Community Corrections Order. In R v NC [2020] NSWDC 547, following a plea of guilty, the offender was sentenced for touching the vagina of a 10-year-old female child for two seconds with his hand and fingers and whilst having parental responsibility for the victim. The context involved his having caused a dog to lick the victim's vagina. He was sentenced to imprisonment of 3 years with a non-parole period of 2 years and 3 months. In Katie Smith v R [2022] NSWCCA 88 the s 66DB(a) offending involved a 14 – 15 year old child and the touching was to the outside of clothing. The circumstances were that the male child had touched the offender, adult female teacher on the breast and she touched his penis over his pants. At first instance she was sentenced to imprisonment of 3 years and 5 months which sentence was determined to be manifestly excessive. On resentence the offender was sentenced to imprisonment of 1 year and 10 months. 18. Neither party has provided, and I have been unable to locate helpful particulars of cases on sentence under s 66DE(1)(a). JIRs statistics show that two offenders have been convicted and sentenced under s 66DE(1)(a) in the period from 1 June 2016 to 31 March 2022. Investigation indicates that neither of those judgments has been published and the only information accessible is the sentence administered. One offender was sentenced to imprisonment of 2 years and 3 months, with a non-parole period of 1 year and 11 months, and the other offender was sentenced to imprisonment of 2 years, with a non-parole period of 1 year and 6 months. 19. In my opinion, Counts 1 and 5 standing alone would likely have proceeded summarily in the Local Court, but the seriousness of the offending on the occasion of the occurrence of Counts 2, 3 and 4 was such that it could proceed properly on the indictment in this Court. Also, in my opinion, Counts 1 and 5 were appropriately prosecuted in this Court, with those more serious Counts, in the circumstances of the total offending involving 2 victims, both youthful within the relevant age range, both under authority of and trusting of the offender in his role of martial arts teacher, when at his direction they were removed from the public eye to the bathroom and over the extended period approaching 2 years. A common current across the offending was the offender's manipulative conduct. In relation to AB, the offender used and abused discussion of "personal growth". In relation to CD the offender used and abused an approach of caring inspection of sunburn in the face of CD having informed him that he had recovered from it. The offences are not properly to be viewed as single, isolated events; Peiris v R [2014] NSWCCA 58 at [63] – [64]. Sentence for each count must be considered separately but in Count in 1 and 5 leniency which might be afforded to a one-off offender, will not be extended to the offender. 20. In accordance with the principles set down in Hili v The Queen (2010) 253 CLR 58 at [18]; [2010] HCA 45; Peiris v R [2014] NSWCCA 58 at [71], regard to JIRs statistics and consideration of sentences imposed in other cases serves the purpose of the opportunity to observe general pattens of sentencing in order to attempt to achieve the desired aim of consistency. Obviously, the circumstances vary between cases and sentencing requires individual justice, based on consideration of the specific circumstances of the present offending. 21. The defence submits only in regard to Count 5, the offence against CD, that the objective seriousness does not cross the Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 threshold. In regard to that offence, the defence submission is that a Community Corrections Order be imposed. The fundamental Crown submission is that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) has been crossed and that a sentence of full time imprisonment is appropriate: Crown Written Submission at [5]; see also T 45. 20 – 36. The defence submits that the circumstance of there being the course of conduct of offending involving AB over two years of Counts 1, 2, 3 and 4 does not relieve the Court from separately determining whether or not the s 5 threshold has been crossed in relation to Count 5: T 37. 26. The defence then conceded that the Count 5 offending involving CD was, in those circumstances of other offending against AB over that two year period, not isolated and that CD was therefore not entitled to leniency which might be afforded the offender for a single offence: T 37. 33 – 49. 22. In my opinion, the offender's manipulation of CD to remove his clothing before kissing him, in the face of CD having told him that he no longer suffered from sunburn, in broader context which I have observed of the teacher/pupil relationship and the young age of CD, was seriously reprehensible. In my opinion, the offending warrants significant punishment in order to provide adequate specific and general deterrence from such offending. In relation to Count 5 I am satisfied, having considered all other alternatives that no penalty other than imprisonment is appropriate for sentence. 23. In my opinion, having considered all other alternatives, no penalty other than imprisonment is appropriate for sentence in relation to Counts 1, 2, 3 and 4. I do accept, the defence submission that whilst the Count 1 offending occurred on a separate occasion, it was a precursor event of lower seriousness and in the context of the history of offending and some accumulation of sentence of that offence with that of more serious offences, is appropriate having regard to the principle of totality. 24. In my opinion, it is appropriate to proceed by way of aggregate sentence pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A. Bearing in mind the maximum penalties available in the Local Court and in the District Court, as statutory "goal posts"; indicating the seriousness with which the community views such offending, the appropriate indicative sentences of full-time imprisonment are: 1. Count 1 – 8 months; 2. Count 2 – 14 months; 3. Count 3 – 21 months; 4. Count 4 – 18 months. 5. Count 5 – 2 months. 1. By imposing an aggregate sentence, as I earlier referenced, some accumulation in relation to Count 1, is to be considered within application of the principle of totality. I also take into account the principle of overall totality and that the aggregate sentence at which I arrive is to be just and appropriate bearing in mind the totality of the criminal behaviour. 2. In my opinion, the appropriate sentence for the Count 1 – 5 offending is full-time imprisonment of 4 years and 3 months. 3. The unchallenged evidence of the offender's incentive to be a law-abiding citizen following his release, in order that he can, in the serious circumstances of hardship within his family, provide support, convince me that he has real prospects of rehabilitation. He will not again legally work with children in a role such as that in which he offended; however, he will generally be exposed to children in and about the community. I bear in mind the risk of recidivism. He has a long life ahead of him worth taking the opportunity of rehabilitation, at least on account of that particular family circumstance, but generally, for himself. This being his first experience with incarceration is a special circumstance, warranting some mitigation. He will now be aware of the very serious consequences should he offend in the future. Pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2A) I set a single non-parole period for all the offences, varying the standard ratio to exceed the normal 1/3 balance term of the non-parole period on account of those prospects of rehabilitation and this being his first experience with full time incarceration. 4. The offender has been incarcerated for 118 days. ORDERS 1. You are convicted. 2. You are sentenced to a term of imprisonment comprising a non-parole period of 3 years; and of a total term of 4 years and 3 months. 3. The sentence commences on 8 October 2022 and expires on 7 January 2027. 4. The non-parole period expires on 7 October 2025. 5. The offender will be eligible for consideration for release to parole on 8 October 2025. 6. I direct the offender accept the supervision and guidance of the Community Corrective Services and obey all reasonable directions of that service. 7. I recommend the offender be directed to sex offender programs for which he is assessed as suitable. ********** 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: 20 February 2023