District Court New South Wales Medium Neutral Citation: R v WP [2024] NSWDC 544 Hearing dates: 15 November 2024 Date of orders: 15 November 2024 Decision date: 15 November 2024 Jurisdiction: Criminal Before: Fitzsimmons SC DCJ Decision: (1) The offender is convicted of the offences. (2) I impose a total aggregate sentence of 16 years imprisonment to expire on 2 November 2037. (3) I impose a non-parole period of 10 years 5 months to expire on 2 April 2032. (4) The earliest date the offender is eligible to be released on parole is on 2 April 2032. (5) With respect to H86191580/5, contravene prohibition/restriction in AVO, the offender is convicted without imposing any other penalty. Catchwords: CRIME – sentencing following trial – additional pleas after guilty verdict - aggravated sexual intercourse child under 10 years – sexual intercourse child under 10 years – sexual intercourse child above 10 years under 14 years – assault occasioning actual bodily harm on child – form 1 matters Legislation Cited: Crime (Sentencing Procedure) Act 1999, ss 3A, 21A(2)(d), 21A(2)(db), 21A(2)(k), 25A(3), 25D, 54A(1), 54A(2), 54B(2) Crimes Act 1900, ss 59(1), 66A(1), 66A(2), 66C(2) Cases Cited: Burr v R [2020] NSWCCA 282 Collier v R [2012] NSWCCA 213 DH v R [2022] NSWCCA 200 EG v R [2015] NSWCCA 21 Giles-Adams v R; Preca v R [2023] NSWCCA 122 Grange v R [2023] NSWCCA 6 HA v R [2023] NSWCCA 274 Hall v R [2021] NSWCCA 220 KM v R [2023] NSWCCA 10 Pender v R [2023] NSWCCA 291 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Eaton [2023] NSWCCA 125 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v JRD [2007] NSWCCA 55 R v Little [2013] NSWCCA 288 R v Lulham [2016] NSWCCA 287 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Olbrich (1999) 199 CLR 270 at 281 R v Sharrouf [2023] NSWCCA 13 R v Storey [1998] 1 VR 359 at 369 Rainbow v R [2018] NSWCCA 42 Young (a pseudonym) v R [2022] NSWCCA Category: Sentence Parties: Rex WP Representation: Counsel: Mr P Mulvihill (Crown) Mr H Maarraoui (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Macedone Legal (Offender) File Number(s): 2021/0312679 Publication restriction: There is to be no publication of a name that identifies or is likely to lead to the identification of the victims. Judgment 1. The offender is to be sentenced with respect three child sex offences following a trial and guilty verdicts. The offences were committed against two of his daughters when they were variously aged between 4 and 12. The offender was found not guilty on a separate offence. 2. In the meantime, the offender has pleaded guilty to an additional two offences of assault occasioning actual bodily harm against two of his daughters with several offences to be taken into account on a Form 1 arising from the guilty pleas. 3. The trial indictment verdicts of guilty were for the following offences: – 1. Count 1 - Sexual intercourse with a child under the age of 10 years, in circumstances of aggravation, namely, the child was under the authority of the offender contrary to s 66A(2) of the Crimes Act 1900. This offence has a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 2. Count 3 - Sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900. This offence has a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 3. Count 4 - Sexual intercourse with a child above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely, the child was under the authority of the offender contrary to s 66C(2) of the Crimes Act 1900. This offence has a maximum penalty of 20 years imprisonment and a standard non-parole period of 9 years. 1. The offender has since pleaded guilty (plea indictment) to the following further offences: – 1. Count 1 – Assault occasioning actual bodily harm (DV) contrary to s 59(1) of the Crimes Act 1900. This offence has a maximum penalty of 5 years imprisonment and no standard non-parole period. 2. Count 2 – Assault occasioning actual bodily harm (DV) contrary to s 59(1) of the Crimes Act 1900. This offence has a maximum penalty of 5 years imprisonment and no standard non-parole period. 1. With respect to count 1 on the plea indictment, the offender asked the court to take into account when passing sentence a further offence of assault occasioning actual bodily harm (DV) and an offence of common assault (DV). 2. With respect to count 2 on the plea indictment, the offender asked the court to take into account when passing sentence an additional offence of assault occasioning actual bodily harm (DV). 3. The maximum penalties and standard non-parole periods for counts 1, 3 and 4 on the trial indictment act as a sentencing guidepost and reference point. The maximum penalties for counts 1 and 2 on the plea indictment similarly act as a sentencing guidepost of reference point. 4. Section 54A(1) of the Crime (Sentencing Procedure) Act 1999 (CSPA), provides that the standard non parole period is that which is included in the table of provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence that falls within the middle range of objective seriousness taking into account only the objective factors affecting the relative seriousness of the offence. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The fixing of a non-parole period is only one aspect of the task when determining what is an appropriate sentence. 5. Admitted on behalf of the Crown were the following: 1. Trial indictment (v 24.2) 2. Plea indictment (v 54.2) 3. S 166 certificate 4. Signed agreed facts on sentence (trial matters) dated 22 March 2024 5. Signed agreed facts on sentence (assault charges) dated 8 August 2024 6. Form 1 attaching to count 1 (H86191580/8) 7. Form 1 attaching to count 2 (H86191580/10) 8. NSW watermarked criminal history 9. Custodial history 10. Police fact sheet in relation to H53223851 11. CANs and Police fact sheet in relation to H72694126 12. Victim impact statements of NP and MP 1. Admitted on behalf of the offender were the following: 1. Report of Sam Borenstein dated 2 April 2024 2. Domestic violence remand program outline, Crossroad's certificate of achievement, certificate of competency Toyota electric forklift 3. Department of Corrective Services documents produced under Subpoena Trial indictment – findings of fact 1. In making relevant findings of fact for the purposes of sentencing I must not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, to the extent that facts in favour of the accused are to be taken into account on sentencing it is sufficient if those circumstances are proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at 281 at [27]; R v Storey [1998] 1 VR 359 at 369. 2. The parties provided proposed agreed facts for the purposes of sentencing. I have considered those facts and the evidence adduced in the trial leading to the guilty verdicts. I am satisfied beyond reasonable doubt as the following facts for the purposes of passing sentence for the three counts for which the offender was found guilty. 3. The offender was in an intimate relationship with the victims' mother (TV) and together they had four children being (oldest to youngest) NP, BP and MP (twins) and TP. At the time of the birth of their oldest child NP the offender and TV were living apart. However shortly after her birth (early 2009) the offender, TV and NP moved into a unit together. The following year (2010) the offender and TV married. 4. The offender was a strict disciplinarian who smacked his children. The offender, when interviewed by police, said that this was necessary for appropriate discipline. 5. By way of context the offender had oral intercourse with NP, by inserting his penis inside her mouth, on 15 – 20 occasions. The first was the offence in count 1 and the last was the offence in count 4. However, the offender was never charged with any sexual offending against NP other than these counts and he is to be sentenced only for the counts for which he was found guilty. Count 1 1. At the time of the first offence committed against NP the offender generally worked six days a week whilst TV worked five days per week and at times a shift on Sunday. On the day the offence was committed the offender was home alone with the victim NP whilst TV was at work. The victim was aged somewhere between 4 years and 4 years 8 months. 2. The offender, who was upstairs in the unit, called NP who was downstairs watching television. He guided the victim into his bedroom where he used a grey T-shirt to create a blindfold which was placed over NP's eyes. The offender threatened NP not to tell her mother about what occurred. The offender told NP to bend down and open her mouth, with which she complied. The offender then inserted his penis into her mouth all the way to the back of her throat following which she started crying. The offender thereafter moved his penis back and forth repeatedly inside NP's mouth, causing her to suck his penis. Whilst the offender was moving fast, NP was crying and telling the offender to stop. He did not do so and said nothing. The offender was moaning whilst having oral intercourse with NP, with the intercourse lasting about five to six minutes. The offender thereafter ejaculated into NPs mouth. He told NP to spit the ejaculate out and to wash her mouth. She subsequently had a shower. 3. NP did not disclose this event until 2021 (to her sister and subsequently to her mother). 4. In about 2015 the offender and his family moved to a home in Bankstown, having lived for a short period prior at the home of the offender's sister. They remained at the address in Bankstown until March 2015. During this period the care arrangements for the children were as follows: – 1. NP would stay with her grandparents on weekdays whilst attending the local public school. 2. BP and MP initially stayed with their parents and subsequently with their aunty (their mother's sister). 3. On weekends, the three children stayed with their parents. 1. The victim's mother continued to work through the week whilst the offender also continued to work six days per week. In late 2015, TP was born and initially stayed at home (several months) before staying with her mother's sister during the week with her two older siblings. Count 3 1. In about March 2019 the family moved to a three-bedroom house in Moorebank at which time the offender stopped working. Around this time all four children commenced sleeping at the family home every night. TV's work arrangements changed around this time. Whilst at work the four children would be cared for by the offender. 2. The offence in count three occurred at night time at the Moorebank home whilst TV was at work. The victim was lying on a sofa or mattress in the lounge room whilst the other three children were in the kitchen at the rear of the premises. The offender lay next to the victim whilst wearing pants and a top. He told the victim that he was going to give her a surprise. He used the piece of clothing to create a blindfold which he placed over BP's eyes. The offender thereafter inserted his penis into BP's mouth. BP removed the blindfold and went to her sisters in the kitchen. The offender however did not ejaculate and remained on the sofa/mattress. BP did not disclose these events until about October 2021 when she told her sisters. Count 4 1. In 2020 the family moved to a townhouse in Ashcroft. During this time the offender remained unemployed whilst TV continued to work at various locations. However, her work hours declined during the COVID-19 pandemic. She thereafter commenced working as a traffic controller for five shifts per week which included day and night shifts of up to 14 hours. The offender would look after the children whilst they were not at school. 2. Whilst living at this residence the offender had oral intercourse with NP on somewhere between 14 and 19 occasions. The last of these occasions was the subject of count 4. This offence occurred when NP was about 12 years 10 months of age. The offender and the victim were in the main bedroom of the residence whilst TV was at work. The offender told the victim to bend down to suck his penis with which she complied. The offender inserted his penis into NPs mouth and made her suck it. Disclosure of the offending 1. As a consequence of a series of events in late October 2021, NP disclosed the alleged offending to her mother and aunty. As a consequence, BP similarly disclosed that she had also been a victim of the offender's conduct. In early November 2021, the offending was reported to police. NP disclosed the offending the subject of counts 1 and 4 in a recorded interview with police. The offender was arrested shortly thereafter and denied all allegations of sexual misconduct towards his children during a recorded interview. BP subsequently disclosed the offending the subject of count 3 in a recorded interview with police. 2. In her evidence in August 2023, NP stated that she had not disclosed the offending the subject of counts 1 and 4 as she thought that if the offender found out she had disclosed this offending that he would "smack me again". However, she subsequently made the disclosure to her mother and aunty as she "couldn't keep it in anymore". 3. NP subsequently disclosed the offending to her friend. Agreed facts – plea indictment offences Form 1 offence attaching to count 1 1. On an occasion when NP was 12 years of age she was at home doing the laundry when she made a mistake. When the offender came to check on her he grabbed a broomstick and struck her on the back. This incident was reported to the victim's mother when she returned home. Count 1 1. In October 2021, whilst the family were living at the Ashcroft residence, the victim's mother asked a sibling to retrieve something from outside as result of which all four children went outside. The offender, who did not allow the children outside at night, came over to the children and smacked NP's sisters. The offender was blaming NP for their behaviour. The offender then threw a shoe at NP's head which struck her eye causing it to swell and become red. The victim's eye was bruised, and her vision was blurry for a period of time after the accident. The injury was shown to her mother. Count 2 1. In late September 2021, the offender and his four children were at home at the Ashcroft residence with the childrens' aunty. MP dropped a brush into her aunty's heater as a result of which the offender took the victim to a bedroom and struck her repeatedly on the back with a broomstick. The offender also punched the victim on the nose causing it to bleed. When the victim's mother later returned home, a disclosure was made by the victim's younger sibling that the offender had hit the victim on her back with a broomstick. Bruises were observable on the victim's back. Form 1 offence attaching to count 2 1. In September 2021 the offender, who was in the upstairs of the residence, asked MP for food. The offender thereafter asked the victim MP to bring rice to him. Instead of bringing the rice in a bowl, MP brought the entire rice cooker to the offender which made him angry. He told MP to put her hand inside the rice. He took MP's left hand and placed it inside the boiling rice in the cooker and held it in that position. MP experienced pain and suffered burns to her fingers resulting in blisters and scalds. MP was in the bedroom when this occurred. The offender then made the victim pick up spilt rice off the floor. At one stage MP did not know where the rice was and as a result the offender grabbed a chair and pushed it into her back, making her cry. Second Form 1 offence attaching to count 1 1. The offender then pushed NP against the wall and repeatedly punched her in the head with a clenched fist asking why she had not brought him a spoon for the rice. The punches caused a lump on NP's head. 2. After this incident, MP peeled off the blister on her index finger as she thought it would make it sting less, however it was stinging worse. 3. The following day the victim's mother took the children to a local park at which time she observed a blister/scald on MP's middle finger. When asked what occurred MP told her mother that the offender had put her hand in the rice cooker because he was angry. 4. On 1 November 2021, during a meeting between the victims, their mother and aunty, the aunty showed NP one of the photographs depicting her back, asking what had occurred. NP disclosed that the offender had hit her. She also showed MP photo of her hand and asked about it. NP disclosed that the offender had placed MP's hand into a rice cooker. Reports were subsequently made to police. Breach of ADVO (section 166 offence) 1. On 5 November 2019 an interim ADVO was made by the Local Court at Liverpool which was served on the offender seven days thereafter. On 5 August 2020, the Local Court issued a final ADVO for the protection of the offender's partner and any person with whom she had a domestic relationship. The order was served on the offender on the date it was issued and was to commence on that date. The orders prohibited the offender from engaging in particular conduct with TV. The final order also applied for the protection of NP and MP throughout the relevant period. The offender knowingly contravened the order by committing the offences the subject of the plea. Victim impact statements 1. NP and MP have provided victim impact statements. Given their brevity it is appropriate that they be reproduced in full: NP "I don't want him around me and my family because it will disturbing (sic), unbearable, traumatic and a threat to us' MP "If I'm in a place where he is I would feel scared, when we at home (sic) I feel scared wen (sic) I hear his footstep in the house, when there is a small problems in the house he gives us me and my sistas (sic) hiding, hit us hard with his hands" The offender's criminal history 1. The offender was convicted of a single offence in March 2009 of destroy or damage property for which he was convicted with no other penalty. In September 2013 the offender committed the offence of stalk intimidate intend to cause physical harm. There were two related convictions from November 2019 of assault occasioning actual bodily harm and contravene ADVO which the offender was sentenced to a community corrections order. The offender has also committed various driving offences including driving whilst unlicensed and driving whilst disqualified/suspended. 2. The offending in 2013 was related to the offender's partner TV as was the case with respect to the 2019 offences. Subjective material Report of Sam Borenstein clinical psychologist 1. The offender was assessed by Mr Borenstein by way of audio-visual link in April 2024. The offender had been imprisoned at that stage for approximately two years four months. He denied criminal antecedents despite the criminal history referred to above. The offender continued to deny the allegations and professed his innocence, claiming that his children were forced to make the allegations. 2. Whilst acknowledging that at times he would smack his daughters, he did not acknowledge the inappropriateness of this conduct, but rather justified it by way of education and discipline. 3. The offender was one of 10 children raised in the Cook Islands. He completed high school education until the age of 17 and thereafter arrived in Australia where he has remained. There were no issues at school, and indeed he was elected prefect or vice-captain. He engaged in various sporting activities. The offender had been in employment since arriving in Australia although indicated that he left his employment following the discovery of his wife's alleged unfaithfulness. He claimed thereafter that he did not have "the energy to work" and also indicated that he was depressed upon discovering this fact. 4. The offender freely acknowledged that he was raised in a strict home in which corporal punishment was used as a form of discipline. However, he did not consider this was adverse but was well intentioned as part of discipline. 5. Mr Borenstein noted on examination that the offender appeared to lack insight. His intelligence was estimated to be no better than low average. There was a distinct absence of any psychiatric disorder, and he presented as cognitively intact. Testing for depression was unable to be completed due to the difficulties in the offender understanding what was required of him. On a Static 99R the offender returned a score of zero indicating the risk of reoffending was in the low average range. 6. The offender reported symptoms of depression from approximately a year prior to his arrest and in response to learning of his wife's alleged infidelity. He was anxious and worried about his future, family, and daughters. The psychologist noted that the offender lacked insight into the extent and nature of the offences and the impact on his daughters in the context of continuing to profess his innocence. He presented with symptoms of depressed mood and anxiety in response to his current circumstances. Records from Corrective Services 1. These records demonstrate that the offender has actively engaged in working and pastoral care/religious services whilst on remand. The records establish that the offender has generally been commended for his work efforts and general behaviour. Certificates 1. The offender has completed a crossroads program and electric forklift course. It appears that the offender has been unable to complete the DV remand program due to the trial indictment offences. Crown submissions 1. The Crown referred to relevant principles applicable to sentencing for sexual offences against children including the need for general deterrence, denunciation and protection of the community. Further that the maximum penalty for sexual offences against children reflects the community's abhorrence and concern about such abuse. In these circumstances general deterrence was of significant importance. 2. The Crown also referred to issues relating to the harm to the victims arising from the sexual abuse, by reference the relevant authorities and s 25A(3) of the CSPA. The Crown also referred to the relevant authorities relating to and assessing the objective seriousness of the various offences. The Crown contended that given the relevant features identified in submissions, count 1 on the indictment fell towards the high end of objective seriousness for an offence of this kind. 3. With respect to count 3, given the features identified, it was contended that this offence fell below the mid-range of objective seriousness for offences of this kind. Whilst the Crown identified relevant features assessing objective seriousness count 4, no specific submission was made as to where this offence fell within a hypothetical range. 4. It was contended that each of the offences were aggravated by reason of the record of previous convictions as well as the offences having been committed in the home of the victim. With respect count 4 the additional aggravating factor was the offence was committed whilst the offender was on conditional liberty by reason of the community corrections order. 5. Submissions were also made on the relevant offences to which the offender has now pleaded guilty. By reference to s 3A of the CSPA the Crown contended that given the nature of the offences particular emphasis would be given to punishment, general and specific deterrence, protection of the community, making the offender accountable and recognise the harm done to the victims. However, it was acknowledged that there was still a need to promote the offender's rehabilitation. 6. The Crown contended that the Form 1 matters provide important context for the offending against the victim and the fact that the offending was not isolated, elevating the need for specific and general deterrence. 7. The Crown opposed a finding of special circumstances. 8. Ultimately, it was contended that a significant sentence of imprisonment was called for. Offender's submissions 1. Counsel for the offender referred to the relevant principles applicable given the terms of s 25A of the CSPA. Reference was also made to the relevant factors in assessing objective seriousness. 2. It was contended that the offending in count 1 would fall near the midrange of objective seriousness whereas count 3 fell towards the lower end of objective seriousness. It was contended for the reasons referred to in submissions that count 4 would fall below the midrange for offending in matters of this nature. 3. It was conceded that an aggravating factor for each of the offences was that they occurred in the victim's home. Given the offender does not have a previous record for matters of sexual misconduct it was contended that it would not be an aggravating factor, although it was acknowledged it disentitled the offender to any leniency. Further, the offender's record was not relevant to the sentencing exercise and would not be pertinent in deciding within the boundaries of objective seriousness what sentence should be given. It was contended that the offender does have some prospects of rehabilitation given his long work history and that he was assessed at being a low risk of reoffending. 4. Reference was made to the various matters to which the offender has pleaded guilty and agreed with the Crown's submission that the offender was entitled to 10% discount given the terms of s 25D of the CSPA. The plea of guilty was a further factor in mitigation in that it obviated the need for the victims to give evidence. 5. As to count 1 on the plea indictment it was disputed that this offending involved gratuitous violence. Rather it was contended that the matter was more spontaneous and a reckless reaction which lacked any planning or premeditation. There was no evidence of any long-standing injury or ongoing treatment. This offence fell towards the lower end of objective seriousness. It was conceded that the matter on the Form 1 on count 1, demonstrated that it was not an isolated incident and it would increase the penalty although not substantially. 6. With respect to count 2 on the plea indictment the offence could be placed below the midrange of offending for such matters given it fell short of being described as an attack or an example of gratuitous violence. There was no evidence of long-standing injury or treatment. With respect to the Form 1 matter on count 2 the offender conceded "an increment" on the penalty for count 2, although the offender has no prior convictions for assaulting this victim. 7. With respect to the counts on the plea indictment it was conceded from the totality perspective that it would need to reflect two different victims. However, they all occurred in one residence which would point towards some concurrency. 8. The offender's submissions referred to principles of totality. It was accepted that as to the trial matters the convictions involved offending against two victims over a lengthy timeframe calling for some accumulation. However, the delay in reporting to police, the objective seriousness, and the need to avoid a crushing sentence pointed towards concurrency of the various penalties. Reference was also made to principles of totality relating to the counts on the plea with concurrency and accumulation pointing in different directions. 9. A finding of special circumstances would be made given the delay, the offender's first time in custody, the low risk of reoffending and prospects of rehabilitation. Further the court would take into account the offender presenting with symptoms of depressed mood and anxiety in which case he was likely to experience jail more onerously. Consideration Objective seriousness 1. As has been recognised in several recent decisions of the Court of Criminal Appeal, including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing judge to make an assessment of objective seriousness, there is no requirement that a sentencing judge do so by placing the objective seriousness of the offence on some putative scale or spectrum by reference to its relationship with a notional midpoint. Rather, what is important is that a judge discuss and identify those factors that are relevant to an assessment of objective seriousness. This is what I have endeavoured to do in this matter. 2. It was noted in the matter of KM that for the benefit of the offender and other interested parties that an assessment of objective seriousness could instead be founded on easily understood English adjectives such as "inconsequential", "trivial", "significant", "serious", "grave", "in the worst class of case" and so forth. 3. With respect count 1, the victim was aged somewhere between four years and four years eight months, placing her below the middle of the age range contemplated by the offence. The offending was accompanied by a threat not to tell the victim's mother. It involved placing a blindfold over the child victim's eyes at the time of the offending. The relevant sexual intercourse was penile oral intercourse which occurred over a not insignificant period (five to six minutes) and involved the offender moving his penis in and out of the victim's mouth rapidly. The offender continued the offending despite the victim's pleas for him to stop and her obviously distressed condition. The offender ejaculated into the victim's mouth. Given these matters I am satisfied the circumstances of the offending reflect a serious example of the type of conduct contemplated by the offence. I accept that the offending was motivated by sexual gratification. 4. With respect to count 3 the victim was aged six, placing her just above the middle of the age range contemplated by this offence. The offending involved some trickery by the offender in telling the victim he was going to give her a surprise before blindfolding her. It involved the offender inserting his penis into the victim's mouth for a relatively short period and making her suck it. There was no evidence of ejaculation and was not accompanied by any threat. This was not an offence committed in isolation. I am satisfied that whilst this is a significant example of the type of conduct contemplated by the offence, it would not be considered as a serious example. 5. With respect to count 4, the victim was aged 12 years 10 months, placing her above the middle of the age range for this offence. It involved the offender directing the victim to bend down and suck his penis before inserting his penis into her mouth. There is no evidence that the offender ejaculated and was not accompanied by any threat. There is no evidence to suggest it occurred over any significant time period. I am satisfied that this again, whilst a significant example of an offence contemplated by the section, would not be considered as serious. 6. Each of the trial indictment offences occurred in the victim's home (s 21A(2)(db) of the CSPA), being a place where the victims were entitled to a reasonable expectation of safety and security: R v Lulham [2016] NSWCCA 287 per Bathurst CJ at [5]. 7. The Crown contends that each of the offences constituted a breach of trust on the part of the offender. This submission is to be distinguished from a specific factor of aggravation under s 21A(2)(k) of the CSPA involving abuse of position of trust or authority in relation to the victim: Rainbow v R [2018] NSWCCA 42 at [30] to [31]; Burr v R [2020] NSWCCA 282 at [123]; HA v R [2023] NSWCCA 274. Ultimately, the offender conceded that it was open to the court to find there was a breach of trust without offending the De Simoni principle: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. 8. Each of the offences on the trial indictment occurred whilst the offender had the care of his daughters whilst the childrens' mother was absent from the family home. I am satisfied that each of the offences did involve a fundamental breach of trust in those circumstances. 9. With respect to count 4, a further aggravating factor was that the offender was on conditional liberty by virtue of an earlier imposed community correction order relating to the victims' mother. 10. I do not accept the Crown's submission that a further aggravating factor was the offender has a record of previous convictions, although his criminal history disentitles him to leniency. 11. With respect to the offences on the plea indictment, count 1 involved the offender throwing a shoe at the victim, striking her eye and causing it to swell and become red. The victim was a child at the time (12 years of age). I do not accept the Crown's submission that it involved gratuitous violence, although it did clearly involve violence directed at a child. Whilst the offence caused some injury, there is no evidence that it caused any long-term physical disability or harm. I am satisfied that this does reflect a serious, although not the most serious sample of an offence contemplated by the section. 12. The second count on the plead indictment involved the offender striking the victim repeatedly on her back with a broomstick. At the time the victim was crying, and the offender thereafter punched the victim on the nose, causing it to bleed. This offence was also directed towards a young child, the victim being only six years old. I am satisfied that this offence does involve some gratuitous violence which did cause fear in the victim and resulted in some injury including nose bleeding and bruising. I am satisfied in all the circumstances this offence reflects a serious example of offences contemplated by the section. 13. Both offences were aggravated given they similarly occurred in the home of the victims. Whilst it must be acknowledged that the offender has previous convictions, including for violence, I am not satisfied that it is a distinctly aggravating factor as contemplated by s 21A(2)(d) although it disentitles the offender to leniency. Both offences are aggravated by the fact that the offender was on conditional liberty by virtue of a community corrections order for offences of assault occasioning actual bodily harm and contravene prohibition, with the victims' mother being the subject of those offences. Other relevant considerations 1. The courts have consistently recognised the harm inflicted on children that are victims of sexual abuse. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 the Court observed at [110]: "… that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]." 1. General deterrence and denunciation have a significant role to play with respect to sexual abuse perpetrated on children. As Hoeben CJ at CL observed in EG v R [2015] NSWCCA 21 at [42] (with whom Harrison J and RA Hulme J agreed): "General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.". 1. The trauma of abuse on children is now statutorily recognised and a mandatory consideration in accordance with s 25A(3) of the CSPA. As was observed in Grange v R [2023] NSWCCA 6, even in the absence of a victim impact statement or other evidence of psychological harm, the court is entitled to consider that there is a substantial risk of emotional harm to the victims arising from the offender's conduct. However, in this case both victims have provided short yet powerful statements in the context of the offender being their father. 2. Both general and specific deterrence have a significant role to play in the sentencing of the offender with respect to the trial indictment offences. 3. There is a distinct lack of remorse by the offender with respect to all the offences for which the offender is to be sentenced. This includes the fact that the offender continues to maintain his innocence with respect to the trial indictment offences. 4. However, even with the plea indictment offences there is a distinct lack of remorse despite the offender's guilty pleas. The offender maintained in the history provided to the psychologist that he had a close bond to his daughters (including his victims). The offender maintained justification for these offences in the context of discipline and punishment of his children. However, it must be acknowledged that at the time of the report the offender had not yet entered the plea of guilty. 5. The nature of the violent acts perpetrated upon his own children, including repeatedly striking a child with a broomstick, punching them in the head and forcing a child's hand into boiling rice, causing scald and blistering, is entirely unacceptable in a civilised society. Any attempt to justify such violence on a child by a parent in the name of discipline or correction is abhorrent and must be denounced in the strongest terms. 6. Whilst the offender initially submitted that the principles in Bugmy v The Queen [2013] HCA 37 were applicable, ultimately this was not pressed. I accept however that the offender's upbringing, including the infliction of corporal punishment, provides context to the offender's approach to the discipline of his own children. However, it does not reduce the offender's moral culpability nor the role of specific or general deterrence in determining the appropriate sentence. As much was conceded by the counsel for the offender. 7. The offender at no time, in the history to Mr Borenstein, suggested that he was adversely impacted by the discipline to which he was subjected as a child. Mr Borenstein did not proffer such an opinion. 8. Whilst I accept that the offender's previous strong history of employment will assist in his rehabilitation upon release, his prospects otherwise must be considered guarded given his lack of acknowledgement of the offences he has committed, as well as the lack of remorse and acknowledgement of the harm done to his children. However, in light of the offender's active and positive engagement whilst on remand there is some prospect that the offender's time whilst in prison will lead to the offender reflecting on his behaviour and the harm inflicted on his children. The offender has enthusiastically embraced religious and pastoral services and has been commended of his work ethic. I accept the unchallenged opinion of Mr Borenstein, based upon the Static 99R, that the offender is in the low average range for risk of reoffending. This was based upon testing which was unchallenged by the Crown. 9. Having regard to the remaining purposes of sentencing provided in s 3A of the CSPA it is important that the sentence reflects the offender being adequately punished, and that the offender is made accountable for his actions. As previously observed, general and specific deterrence remain very relevant factors in determining an appropriate sentence, as does protecting the community from the offender. 10. Findings have already been made as to the role of personal deterrence in the sentencing process. The Form 1 offences 1. In Re Attorney General's Application under s 37 of the Crime (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002), Spigelman J at [42] observed the following: – "The position, in my opinion, is that, although a Court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of other offences will frequently indicate, or to be given greater weight by reason of the course of conduct which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences." 1. In R v JRD [2007] NSWCCA 55 Howie J considered the significance of taking into account other charged offences as follows: – "[29] … Clearly it may be a fact or circumstance relevant to the commission of a particular offence that, at or about the time when that offence was committed, the offender committed other offences. It would be relevant, for example, to a finding whether the particular offence was an isolated 'fall from grace' or whether it was merely an instance of a course of criminal conduct in which the offender was involved at the relevant time. [30] So in sentencing the respondent for any one offence it was highly relevant that all of the offences and the matters on the Form 1 were committed in a period of about four months and that each offence represented a different aspect of the respondent's overall criminality in that period." 1. I accept the Crown's submission that the Form 1 matters provide important context to the offending against the relevant victim including the fact that the offending was not isolated. I accept that it does elevate the need for specific and general deterrence. Particularly the additional offence of assault occasioning actual bodily harm against NP, when sentencing with respect to count 2, reflects a serious example of the offence contemplated by the relevant section given it involved the offender placing the victim's hand inside the boiling rice causing scalding and blistering. As quite properly conceded by the offender in submissions, it must reflect an increase in the penalty that would otherwise be imposed with respect to both offences for which the offender is to be sentenced. Sentences to be imposed 1. I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. I am satisfied that this is an appropriate matter for the court to invoke s 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made. 2. With respect to the plea indictment offences, the offender is entitled to a discount of 10% on the sentences that would otherwise be imposed. The plea must also reflect the offender facilitating the course of justice noting that it avoided the need for the victims and other witnesses to give evidence: Giles-Adams v R; Preca v R [2023] NSWCCA 122. 3. The offender contends that a finding of special circumstances given some of the delay in prosecution, this will be the first time the offender has served a custodial sentence, there is a low risk of reoffending and prospects of rehabilitation, and that the offender presents with symptoms of depressed mood and anxiety. 4. I accept the Crown's submission that delay is not a relevant factor in circumstances where the offender has contributed to the delay as a result of the threat to NP accompanying the conduct constituting count 1: Young (a pseudonym) v R [2022] NSWCCA 111 at [50]. I further accept the Crown's submission that the mere fact that the offender is in custody for the first time of itself does not justify a finding of special circumstances: Collier v R [2012] NSWCCA 213 at [36]. However, as counsel for the offender submitted, it is a relevant factor, in combination with other applicable circumstances, that may justify a finding of special circumstances: R v Little [2013] NSWCCA 288 at [30]. 5. I accept the unchallenged evidence of Dr Borenstein that the offender was not merely demonstrating signs of depression and anxiety at the time of the assessment. The offender had told Dr Borenstein that he also had been experiencing depression over the year or so prior to his arrest and being charged. Further, I am satisfied that a combination of the offender's first time in custody, the mental health issues identified in the report of Dr Borenstein, together with the need for the offender to be closely supervised and undergo significant rehabilitation points towards a finding of special circumstances. This must also be considered in the context of my previous observations relating to the offender's prospects of rehabilitation and his activity whilst on remand. 6. With respect to count 1 on the trial indictment, the appropriate sentence is 12 years with a non-parole period of 7 years 10 months. 7. With respect to count 3 on the trial indictment, the appropriate sentence is 8 years with a non-parole period of 5 years 3 months. 8. With respect to count 4 on the trial indictment, the appropriate sentence is 6 years with a non-parole period of 3 years 11 months. 9. With respect to count 1 on the plea indictment and taking into account the two offences on the Form 1, the appropriate sentence is 2 years from which is to be deducted 10% for the plea of guilty, resulting in a sentence of 1 year 9 months. 10. With respect to count 2 on the plea indictment and taking into account the one offence on the Form 1, the appropriate sentence is 2 years 6 months from which is to be deducted 10% for the plea of guilty, resulting in a sentence of 2 years 3 months. 11. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] (per Spigelman CJ, Whealy J and Howie JJ). 12. The offending on the trial indictment occurred over a period of approximately nine years involving two victims. The most serious of the offences (counts 1 and 3) were committed against different victims. In the circumstances, the aggregate sentence must reflect a reasonable degree of accumulation. With respect to the offences on the plea indictment there must be some accumulation, although less so, reflecting the fact that the offences involved two victims although over a relatively short period. I find an appropriate aggregate sentence is 16 years imprisonment with a non parole period of 10 years 5 months. 13. The offender has spent a total of 1109 days in custody solely referable to the offences for which he is to be sentenced (since 3 November 2021) Accordingly, the sentence will be backdated to allow for the time spent in custody. Orders 1. The offender is convicted of the offences. 2. The indicative sentences are set out above. I impose a total aggregate sentence of 16 years imprisonment to expire on 2 November 2037. 3. I impose a non-parole period of 10 years 5 months to expire on 2 April 2032. 4. The earliest date the offender is eligible to be released on parole is on 2 April 2032. 5. With respect to H86191580/5, contravene prohibition/restriction in AVO, the offender is convicted without imposing any other penalty. ********** 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: 21 November 2024