District Court New South Wales Medium Neutral Citation: R v AX [2015] NSWDC 75 Hearing dates: 30/11/2014; 06/03/2015 Decision date: 13 March 2015 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Count 1: Convicted, sentenced to a term of imprisonment of 1 year 6 months suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. Count 2: Convicted, sentenced to a term of imprisonment of 1 year 9 months suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. Catchwords: Criminal – Sentence, indecent assault child under 10 , delay in prosecution, comparative sentences. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 - s 61M(2) Cases Cited: DPP (Cth) v De la Rosa [2010] NSWCCA 194 Douar v R [2005] NSWCCA 455 Mill v The Queen (1988) 166 CLR 59 MJL v R [2007] NSWCCA 261 MPB v R [2013] NSWCCA 213 Muldrock v The Queen [2011] HCA 39 PWB v R [2011] NSWCCA 84 Pearce v R [1998] 194 CLR 610 R v Bloomfield (1998) 44 NSWLR 734 R v Gavil [2014] NSWCCA 56 R v MJR (2002) 54 NSWLR 368 R v Mauger [2012] NSWCCA 51 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Todd (1982) 2 NSWLR 517 SM v R [2014] NSW CCA 137 R v Zamagias [2002] NSWCCA 17 Category: Sentence Parties: Director of Public Prosecutions AX - Offender Representation: Counsel: Mr M Barr - Crown Mr G Clarke - Offender Solicitors: Director of Public Prosecutions Antonenas Legal - Offender File Number(s): 2013/226873 sentence 1. HIS HONOUR: AX, I sentence you in respect of count 1 to 18 months imprisonment and in respect of count 2, I propose to sentence you to one year nine months imprisonment. I propose to suspend the terms of imprisonment pursuant to s 12 Crimes (Sentencing Procedure) Act. I indicate that if I partially accumulated the sentences I would have sentenced you to a total sentence of two years. 2. The prisoner, AX, appears today for sentence in relation to two offences to which he pleaded guilty on arraignment before me in November of last year. Those two offences are, firstly, that he, between 9 July 1993 and 31 December 1994 at Greystanes in the State of New South Wales did assault AA and at the time of the assault did commit an act of indecency upon her, she then being a child under the age of ten years namely, seven or eight years. The victim is his daughter. 3. The second count alleged that he, between 19 July 1993 and 31 December 1994, at Greystanes in the State of New South Wales, did assault AA and, at the time of that assault, did commit an act of indecency upon her she being a child under the age of ten years, namely seven or eight years. 4. Both of these crimes are contrary to s 61M(2) Crimes Act 1900. Each offence carried a maximum penalty of ten years imprisonment at the time of the offending. Since the introduction of standard non-parole periods, set out in Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999, these crimes have now what appears to be an anomalous standard non-parole period of eight years, but which the legislature obviously has approved. 5. The prisoner pleaded guilty to these counts on the indictment after he had been tried before me in relation to allegations of sexual assault committed against other members of his family, particularly siblings. He was acquitted of those charges. 6. The matters with which I am concerned were to be treated as a separate proceeding which would have been tried separately, had he pleaded not guilty. The relevance of those other matters for which he was acquitted is, particularly in this matter, that the complainant reported these matters to police in October 2012. The offender was arrested and charged on 25 July 2013. As I would understand it, at the time of charging in relation to these matters, the prisoner had, in fact, already been charged in relation to the various allegations brought against him by his siblings. 7. The significance of that matter is, in part, to be found in the fact not revealed in the statement of facts, but which was advised to me by the learned Crown Prosecutor when the matter was before me late last Friday afternoon, that the complainant had made allegations against the accused in August 1999 which were the subject of, as I understand it, a partial police investigation but which allegations were withdrawn in September 1999. 8. The pleas of guilty to the counts on the indictment followed some negotiations which apparently had been ongoing during the course of the trials in respect of which the accused was acquitted. I accept that whilst the pleas of guilty were entered at a time when it was expected that the trial relating to this particular complainant would proceed, the Crown had anticipated, as had the accused, that the accused would plead guilty. Thus, it was not strictly the situation of pleas of guilty entered at the doorway of the court as the trial was about to commence. 9. I have heard submissions from learned counsel for the prisoner and the Crown and, as I understand it, it is generally agreed, and I certainly agree with the proposition, that the accused is entitled to the benefit of a discount for the utilitarian value of the pleas of guilty. The relevant discount in this matter can be assessed at 12 per cent upon the otherwise appropriate penalty, just slightly higher than the 10 per cent which is in legitimate sentencing discretion when sentencing an offender who pleads guilty on the day that the trial is expected to start. That assessment of the quantity of any particular discount comes from the decision of the Court of Criminal Appeal in Thomson and Houlton of 1999. 10. With regard to the facts and circumstances of the matter I note, as I have said earlier, that the victim in these matters is the prisoner's daughter. She was born on 19 July 1986. The generality of particulars as to her age and as to the date of the commission of the offences arises from a lack of particularity in the complainant's recollection of the specific occasion that particular events occurred, as I would understand the situation. 11. The prisoner was born on xxxx. This means, obviously, that he would have turned 36 years of age in June 1993 . 12. The victim was his younger child. The prisoner has an older child, a boy who was born in xxxx. At the time of the offending, the prisoner, the mother of the children who was the prisoner's wife and the children lived together in a residence at Greystanes. The family lived together at that address until 1998. They continued to live together as a family unit until a time in 1999 when the marriage between the prisoner and his wife completely broke down and the wife left the marriage. The children went with the mother and it would seem that the children have not spoken to, or had contact with, the prisoner since that separation. It would seem, from what I understand from the matter, that the separation had a number of contributing factors, not all revealed of course in the agreed facts, although some were referred to in the course of the litigation to which I earlier referred relating to the siblings of the prisoner. 13. There was evidence in the previous trial that has been specifically adverted to in this proceeding that, at the time of that separation, the prisoner must have had some form of breakdown. He was found by police living or hiding in the roof cavity of the then family home, having been resident there, so to speak, for a period of something like ten days before police took him into some form of custody to be taken to a mental health facility. 14. The facts of count 1 are that when the victim was seven or eight years of age, she was at home with the prisoner and he called her into his bedroom. He was lying in bed. She walked to the side of the bed and he pulled the blanket away. He was naked and exposed his penis and he said to the victim "hold my penis and move your hand up and down". He "grabbed" her right hand and placed it on his penis and moved her hand in an upwards and downwards motion. She pulled her hand away and ran out of the bedroom. She did not disclose this to anybody, for obvious reasons. She was scared and confused about what had occurred. 15. The facts suggest, for the purposes of at this stage reflecting upon the factual circumstances, that the incident occurred over a relatively short period of time. The prisoner did not ejaculate, although it is clear that the accused was causing her to masturbate him for some period of time. 16. As the facts describe it in relation to count 2, "on a later occasion around the same year" the prisoner again called the victim into his bedroom. Again he removed the blanket, exposed his penis and grabbed her right hand. She pulled her arm away, in the context of having previously experienced this type of event. He told her to "come on", firmly placed her hand on his penis and told her to move her hand up and down. He then moved her hand up and down on his penis. 17. The facts specifically state in this regard that the victim indicated "that it did not last long". The prisoner obviously took his hands off her fingers and as soon as he did that, she pulled her hand away and ran out of the bed room. Again, she did not disclose that at the relevant time. 18. The matter came to light in a period "around 1994" when a diary in the possession of the victim, which she had kept since 1992, was found by the victim's mother to have an entry disclosing the behaviour forming the subject matter of the two counts with which I am concerned. The prisoner was confronted by the mother. The prisoner told the victim to rip the page out of the diary, which she then did. It is said in the facts that there were "no further sexual acts by the prisoner against the victim after the discovery of the diary". 19. The prisoner has given evidence which was not challenged by the Crown that the prisoner had apologised to his wife and to the victim, promised that he would not repeat the conduct again and the family continued to live together, albeit I would imagine in considerably strained relations for this event alone. 20. The victim "remembers there were a number of other occasions when masturbation occurred and also occasions when the prisoner offered to give her chocolates if she masturbated him". The significance of that evidence is, as the authorities make clear, that in proper context the two offences with which I am concerned were not "isolated incidents". But the number of times that these other incidents occurred and the character of their repetition could not be established beyond reasonable doubt. I will come back to the relevant authorities that deal with an analysis of offending of this type shortly. 21. The prisoner has findings of guilt in October 1980 and June 1981 in the Court of Petty Sessions, as it was then called, for offences of "wilful and obscene exposure". For one offence, he was placed on the then equivalent of a section 10 bond for a period of 12 months; on the other occasion, he was fined $200. It would seem that the second offence was in breach of the bond that he had been given the year before, given its timing. But there is no evidence of any action upon the earlier given "recognizance". 22. There is a finding of guilt in November 1999 for contravening an Apprehended Domestic Violence Order. This conviction fits in with my understanding of the chronology of events concerning the separation of the prisoner from his wife and would obviously be concerned with matters relating to their early relationship after that separation. Obviously, it is an offence that postdates the offending behaviour. So, in that sense, is not directly relevant to the assessment of character and the significance of the convictions. 23. On the other hand, in the context of the evidence that was before me in the trial that I am obviously required to consider to some extent in this sentencing procedure, I do not see that conviction as representing something of significance in this sentencing exercise. It appears to be very much tied up in the early period of separation. It was dealt with by a bond pursuant to then s 558 Crimes Act 1900, the relevant provision relating to the making of recognizances after a conviction is recorded at that period of time. The prisoner has no other findings of guilt since that conviction was recorded. 24. The prisoner, as I understand it, may have had one day in custody in the context of appearing at court from police custody in 2014, which I have taken into account. 25. I have a body of evidence relating to the personal circumstances of the prisoner in the form of a Community Corrections Report prepared on 29 January 2015 which was tendered in the Crown case, as is usually the case; a report from Dr Olav Nielssen, a psychiatrist retained by the prisoner's solicitors; character references from the prisoner's now wife and his "stepdaughter", the daughter of his current partner; and the evidence of the prisoner, who also relies on the statistics provided. I will refer to those matters shortly. 26. There appears to me to be no real issue as to the general subjective circumstances of the prisoner, particularly in light of the acquittals of the accused in respect of the allegations made against him by his sisters. 27. The prisoner was born in Italy, as I understand it in Naples. He came to Australia at the age of 12 and was at an age where it was difficult for him to settle into school with his language difficulties, a problem not confronted by his younger siblings. Because of, it would appear, some pressure within the family for him to assist in the family's financial well-being, he left school at an early age. He claims of suffering some mental and physical abuse from family members which is, to my mind, of no significance in this proceeding. 28. He worked as a baker, as I understand it, or trained in that particular craft, and has been involved in matters concerning baking and food preparation in the hospitality industry and the like since he left school somewhere around the age of 14 or 15. 29. I accept the evidence establishes, from what I heard at the trial so far as it is relevant in this proceeding and what I received in this particular sentencing procedure, that the prisoner has been regularly employed. He is an industrious worker. There is no doubt, as I understand it, when he was living with his wife and children that he was not neglectful of their financial means, although that is not to say that he has always been financially secure. 30. The prisoner gave evidence before me, and also reported to Community Corrections and Dr Nielssen, that in the early 1990s he commenced to consume amphetamines. These were introduced to him in the context of being a baker, working very long hours and getting up early in the morning, as a means of sustaining him in those onerous conditions. 31. He also continued to abuse alcohol and amphetamines up until the breakdown of his marriage. It would appear that at that time there were various financial strains upon the family. Part of the evidence at the trial was a dispute that arose between himself and his siblings concerning moneys that he borrowed from his parents, at least when his father and mother were alive, and which, at the death of his mother the last parent to survive, remained unpaid. 32. He has however, since the separation from his wife, steadied his financial circumstances. It would appear that since around about 2003 or thereabouts he has been successful in business and currently conducts a business in the form of a restaurant in the southern part of the St George area. His wife works in that business and there are quite a number of employees, as I understood the evidence, ten or 11 employees, that work from time to time. 33. The prisoner, according to the Community Corrections Officer and in the assessment of Dr Nielssen, has no particular current mental health issues. There was the evidence that I was aware of concerning his breakdown in 1999 and his "scheduling", that does not seem to me Dr Nielssen was referred to, in the subpoenaed material that was produced to this Court and was referred to at some stage during the earlier trial. There is no issue of any mental health matter, other than perhaps an underlying condition of depressive symptoms and anxiety arising from other external factors, contributing to his offending on this occasion. Certainly, I have not been required to consider whether the various matters which were summarised by McClellan CJ at CL in DPP (Cth) v De la Rosa, a 2010 decision of the Court of Criminal Appeal. 34. To the officer of the Community Corrections Service he acknowledged the wrongness of his actions and the negative effect upon his daughter. There is no victim impact statement in this matter. I draw no inference, if I can use the expression, adverse to the victim or favourable to the contention that the prisoner's conduct has had no effect upon the victim by that fact. But, on the other hand, I have no evidence, other than what might be inferred from the character of the offending and its impact upon the family dynamic, of long term damage or specific injury suffered by the victim from this conduct. 35. I have mentioned part of the history of this matter is that when the wife left the marriage, the children had no further contact with their father and that continues to be the case. 36. The prisoner acknowledged that his actions were wrong, attributing his offending behaviour to his illicit drug use at the time. In fairness to the prisoner, as was pointed out by Dr Nielssen the prisoner, whilst he speaks good English as I understand it, has English as a second language. I am not trying to excuse the expression of what he said to the Community Corrections officer in a manner favourable to him, but for the purposes of my fact-finding even noting the affect upon him of taking prohibited drugs, there appears to be nothing in the offending that can be explained by the consumption of illicit drugs. If it is claimed that it heightened his sexuality in some way, it does not explain why that heightened sexuality had to be satiated or satisfied by a sexual assault committed upon his daughter, as opposed to increased sexual activity with his wife, or some other person who he may choose who was above the age of consent and was a proper person with whom to have a sexual relationship. 37. I am mindful of the fact in this context that there is some history that there was a breakdown between himself and his wife in a range of ways but that can offer no excuse or even explanation for a sexual assault of this type. 38. He was subjected by Community Corrections to an actuarial test or assessment as to his risk of reoffending and is assessed to be at a 'medium to low' risk of offending. The report states that he is self-employed, as I have earlier indicated; has a stable income with no financial stress; he acknowledged his actions were wrong and denied any current issues with alcohol, drugs or mental health. He is thought to be appropriate for supervision by Community Corrections and should be monitored for engagement with recommended sexual offender treatment and I will recommend those matters in the bond that I have foreshadowed I will order. 39. He is suitable for Community Service, but he is thought to be a person who would not benefit from a Community Service order and there were no current programs to address his identified needs. 'Community service' is not a matter I would contemplate, in any event, in this matter. 40. Coming back to Dr Nielssen's report, I have dealt with many of the matters of history. Some of that history I have taken into account relates to the context of conflict between he and his family members. He explained the two convictions for indecent exposure as extending from being caught masturbating in his motor car, extending from his sexual frustration and lack of privacy at the time, rather than any particular excitement arising from exposing himself. I could not conclude that there was a necessary link between that conduct and the conduct towards his daughter in the context of there being something in the order of a 13 or 14 year break between the two episodes. 41. In my view, ultimately I have concluded that the prisoner does not have a significant history of criminal convictions for the purposes of this sentencing exercise. 42. Dr Nielssen reflected upon his stable relationship. The prisoner has adopted the religious lifestyle of his now wife. He denied that he was attracted to prepubescent children, or being especially attracted by teenage girls and his current wife, who has a daughter, as I understand it, now aged 22 according to the history given to Dr Nielssen, does not complain about any impropriety on the part of the prisoner. 43. There is no family history of mental illness. He gave some indication of some symptoms consistent with depressive illness. It was noted that there were risk factors for depression for him, including hardships associated with adjusting to migration, the effects of physical and emotional abuse during his upbringing and being saddened by the loss of his children. However he did not describe being pervasively depressed and there appeared to be no evidence of impairment in social function at the present time. He reflected upon some sadness and "underlying mood" of appearing depressed. However, he was found not to be suffering any mental illness. 44. Dr Nielssen, who is a well-respected psychiatrist, gave consideration to the possibility that the prisoner had a disorder of abnormal sexual intercourse (a paraphilia) in the form of exhibitionism, but in the context of his history of denying any particular excitement from his conduct, he could not be satisfied such a disorder existed. 45. He may have had a substance abuse disorder at an earlier time but that no longer occurred. The prisoner had told him that cannabis and amphetamines particularly were used at the time of the offences. Dr Nielssen said these drugs are: "...likely to have contributed to his behaviour because of the increased sexual interest and the loss of judgment and inhibition associated with the use of those drugs." 1. Again that may be so, but it does not explain why he would act this way towards his daughter as opposed to some other person more mature. 2. Dr Nielssen said that sexual offenders generally have a lower probability of recidivism than other categories of offender and intrafamilial sex offenders are reported to have an even lower rate of recidivism, probably because of the opportunistic nature of their offending. 3. The doctor reflects upon the absence of any reported misconduct towards the stepdaughter and she does not complain of any misconduct. There is no history of anti-social conduct or recent substance abuse disorder which may be contributors to recidivism and on the Static 99R actuarial assessment, he scored between 1 and 2 out of a maximum score of 12 which indicates a "low probability of re-offending". No psychiatric treatment is recommended. 4. As I said, the references from the wife of the prisoner and her daughter are very positive. The industry of the prisoner and his good conduct within the family unit is noted and the daughter, as I have earlier said, has said that the prisoner has never acted inappropriately towards her at any time. 5. Of course, I have earlier referred to the prisoner's evidence, some of which I have summarised, as I have worked my way through the material available. With respect to his evidence, he repeated his regret for his conduct. 6. The submissions of the parties were most helpful. Counsel for the prisoner concentrated on the need for the Court to approach the sentencing of the prisoner having regard to what are described as "sentencing standards at the time of the offending". I will come back to the import of decisions such as R v MJR (2002) 54 NSWLR 368 at a later time. 7. It was also brought to my attention by learned counsel for the prisoner particular statistics. I am not criticising counsel but these statistics were of little assistance in some respects. Whilst they are for the 'old', as it is described, s 61M(2) aggravated indecent assault of a child under ten, before the introduction of standard non-parole periods, it is to be borne in mind that standard non-parole periods were introduced not on the introduction of the Crimes (Sentencing Procedure) Act, but a number of years after that, in approximately 2003 or 2004. Thus, the statistics provided do not to my mind necessarily provide a reliable picture of events in 1994 or reflect a range of offenders; in the material provided to me 21 cases over a period of time, between the introduction of s 61M(2) Crimes Act replacing s 61E Crimes Act before 1993 up until the introduction of standard non-parole periods. The statistics are for 2007 to 2014. 8. In that regard, however, one of the judgments to which I was referred by learned counsel for the Crown very helpfully contains a summary of particular statistical information that is in fact current to the year 1994 relating to sentencing of offenders in the District Court in 1994. That information provided in PWB v R [2011] NSWCCA 84 (in the judgment of R S Hulme J at [71]) notes from Judicial Commission statistics of 1994, that where the principal proven offence was masturbation of the victim or offender, 39% of offenders received a full-time custodial sentence for an offence pursuant to s 61M(2). Apparently the period of time covered by the statistics included consideration of offences under s 61E, the provision, as I understand it, that was substantially replaced by s 61M of the Act. There are other statistics pre- Standard Non-Parole Periods for the period 2000 to 2002 which are not relevant. 9. In relation to the issue of statistics, if I might deal with that issue at the point where I am referring to the submissions of learned counsel for the prisoner, I note what was said by Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734, particularly at p 739. Bald statistics are of limited use, he said. They are less useful than surveys of decided cases which enable some detail of the specific circumstances to be set out. Caution needs to be exercised in using statistics, but they do provide some assistance in ensuring consistency and may provide an indication of general sentencing trends. They may indicate an appropriate range, particularly where a significant majority or a small minority, fall within a particular range, and also may be useful for the Court of Criminal Appeal in a way that does not assist this Court. Where the circumstances of particular offences vary greatly, however, they may be of little use, such as with manslaughter. 10. One of the issues relevant to statistics, although I do not think it applies necessarily to this type of offending but does particularly in relation to manslaughter and accessorial liability in relation to the crime of murder, is that statistics setting out non-custodial options will not reflect the fact that people originally charged with murder may spend a number of years or a lengthy time in custody before the matter is ultimately disposed of by the Court which may not be reflected in the final orders. 11. I have had regard particularly to the observations in PWB insofar as they are reliably contemporaneous. The statistics cited, however, do not deal with the range of options otherwise exercised apart from full-time custody. I bear in mind, of course, that in 1994 through until 2001 Courts in this jurisdiction did not have the power to order the terms of imprisonment to be suspended. 12. With regard to the character of the offending, counsel for the prisoner pointed to the absence of touching of the complainant. She was not undressed. She was fully clothed at relevant times. The offences were of short duration. There was no ejaculation. It was submitted that there was no prolonged sexual abuse. 13. A submission was made that the Court might conclude that the two offences were committed one day after the other. But that is not in accordance with the substance of the agreed facts and, in any event, the offences have to be seen in the context of other conduct, albeit not particularised. 14. It was submitted, and I accept, that the prisoner's plea of guilty was an important matter to take into account, not just for its utilitarian value. It was described as "courageous" by counsel for the prisoner. It was a recognition by him that the complainant would be believed and it relieved the complainant of the ordeal of coming back here to give evidence in relation to a man who has long been out of her life. 15. The prisoner had apologised, his account uncontradicted, at an early time and the prisoner's continuation in the domestic unit for a period of what appears to be four or five years afterwards was a reflection of not only his rehabilitation, but also of, at least for a period of time, the acceptance of his apology. There was clear contrition, it was submitted, which I accept to be so from a short time after the offending and there was a cessation of offending, which is an important matter. The prisoner's offending conduct did not cease simply because his testosterone levels started to diminish or he was arrested or the children were taken from him. 16. It was also submitted on behalf of the prisoner that there were 20 years of rehabilitation, which was an important matter to take into account. This I do. He had reformed himself and continued to make a contribution in the community. 17. I was reminded of the fact that there was evidence from him, again not challenged by the Crown, that he was conducting a substantial business that he had developed, since the separation from the daughter, in circumstances where at one point he believed he may be prosecuted in relation to this matter but had the allegations withdrawn from him. He had gone on to develop a successful business upon which other people were dependent, not just his family but other employees which I take into account. I do not take it into account as an exceptional circumstance, but it is one of a number of matters favourable to the prisoner to be taken into account in this case. 18. It was submitted no issue of specific deterrence arose, which I accept. But, of course, as the Crown pointed out in its oral submissions in response, general deterrence remains a relevant matter for obvious reasons. 19. The Crown took issue with some of the submissions made by learned counsel for the prisoner. I have already dealt with one aspect concerning the timing of the offending. 20. The Crown asked me to have regard to the decision of PWB as providing some guidance to the Court, particularly in the table of cases that are attached to that decision. I will come back to that table of cases in a moment. 21. The Crown accepted there should be a discount for the utilitarian benefit of the plea and the Crown, as I said earlier, pointed out in the context of the issue of delay, that the complainant had in fact made a statement about these matters on 26 August 1999 but withdrew that statement in September 1999. 22. With regard to consideration of matters that were raised in submission and otherwise are required to be taken into account, naturally I have regard to the 'purposes of sentencing' under s 3A Crimes (Sentencing Procedure) Act. There are other purposes of sentencing that do arise here, particularly general deterrence. I do not believe at this point, although it may have been different in 1994, that the protection of the community or of the child is an issue. The prisoner has to be made accountable for his conduct, but, notwithstanding what was said to be 20 years of rehabilitation, I am also required to promote his rehabilitation. I have to denounce his conduct obviously and I must recognise the harm done to the victim of the crime which must be recognised or identified by inference without any particular evidence to assist me. 23. With regard to s 21A Crimes (Sentencing Procedure) Act, the learned Crown's very helpful and detailed written submissions pointed to a number of matters. The Crown referred to the fact that the offence "involved the actual or threatened use of violence". I cannot accept that this is an aggravating factor in this offending. There is reference to the facts that the accused grabbed the complainant's hand and held the complainant's hand at one point of each exercise for a short period of time, but this is not actual or threatened violence as those words would be commonly understood. 24. The Crown also submitted that an aggravating factor was that the prisoner had a record of previous convictions and this is described as being sentence for personal violence offences and the like. In this matter, I could not conclude that his prior findings of guilt in relation to wilful and obscene exposure represent "relevant aggravating factors" in this matter in the way that that provision in s 21A(2) is contemplated. In fact, I have already indicated I conclude on balance in favour of the prisoner that he does not have a significant record of criminal convictions. 25. I accept the Crown's submission, which is self-evidently true, that the accused abused the position of trust and authority in relation to the victim. The victim was entitled not to be sexually assaulted in the way she was in her own home. The cases from superior courts are all at one in stating that the parents of children have a particular obligation to protect their children and not commit acts of violence and sexual violence against them. 26. With regard to mitigating factors that arise, apart from the matters I have already identified, I have concluded, having regard to his age and his progress over 20 years, that he is unlikely to re-offend. Hence the need not to be concerned about, at this point, the protection of the community. The offences were not planned or organised criminal activity. The prisoner has shown remorse for the offending in the way contemplated by s 21A(3)(i), accepting responsibility for his action and acknowledging the harm done to the victim. 27. The plea of guilty is a relevant mitigating factor but he receives a discrete discount for that. I have concluded that he has excellent prospects of rehabilitation, evidenced best by his conduct over the last 20 years. 28. With regard to the more general or, perhaps in another way of putting it, more specific sentencing principles that relate to this type of offending, I was particularly taken to a number of authorities which reflect upon, or include, the observations of the five judge Bench of the Court of Criminal Appeal that determined the decision of R v MJR. Another particular case that was cited and which I now refer to was the decision of MPB v R [2013] NSWCCA 213. Basten JA gave a separate judgment, the lead judgment in the case would appear to be the judgment of Garling J, agreed to by RA Hulme J. I particularly refer to [78]-[94]. I do not propose to go into the detail of that aspect of the judgment beyond noting from MJR that sentencing practice as at the date of the commission of the offence is to be recognised when sentencing practice has moved adversely to the offender. What has moved adversely to the offender since the commission of these offences is the introduction of the standard non-parole periods provided for this offence, in the context of consideration of the requirements of s 54A, s 54B and the principles laid out by the High Court in the decision of Muldrock. 29. When I concern myself with the issue of a sentencing pattern, however, I found some difficulties in this matter. Of course, I have not just been sitting in my Chambers since last Friday when I did about five or six matters up until about half past five, including this matter, reflecting upon this case. I have been involved in another trial and a number of other matters. But I have done my best to go through the material presented to me and consider, particularly, the very helpful material presented by the Crown. 30. The Crown sought to refer to, at from the bottom of page 3 to page 5 of its written submissions, a number of supposedly "comparative" cases, being in fact decisions of the Court of Criminal Appeal over a period of time, both at the time of the commission of this offending in 1994, 1995 or 1996 and more recently when offenders have come forward for sentencing in relation to offending in 1993 or 1994. 31. It is quite apparent just looking at the summary provided by the Crown that a number of the judgments referred to have no relevance to this case for a range of reasons, including the character of the relationship, the character of the offending or, alternatively, the intensity of the offending, the frequency of the offending, or, most importantly, because the sentences for s 61M(2) offences were sentences imposed in the context of other sentences that were fixed for far more serious offending such as sexual intercourse. 32. By reference to the 'Table' to PWB, a very good example of that is in the decision of Ruhle, a decision of 25 July 1995. It was correct in that matter, where the offender was sentenced to a minimum term of one year and an additional term of one year, that the prisoner was convicted of an aggravated indecent assault pursuant to s 61M(2). But the prisoner was also convicted of an offence contrary to s 78H, homosexual intercourse with a person under the age of 10, for which he received a total sentence of three years. That was an act of forcing the victim to perform fellatio upon him. I am not criticising the Crown for drawing my attention to the judgment, if it be noted for the principles that are set out in the judgment of Cole J about the weight to be given to general deterrence and retribution for offenders committing offences against young children. But at the same time the actual sentence imposed has to be seen in the context of other crimes. 33. When one looks at PWB, a number of the cases referred to which were obviously cited for the purposes of that particular judgment which concerned itself with offending that occurred over a period of time between the early 80s through to the early 90s. A number of the offences were concerned with s 61E which carried a lesser maximum penalty. Where offences are cited that arise under s 61M(2) in almost every situation the relevant sentence has to be seen in the context of other offending, usually involving crimes of a more serious nature; for example, R v L which had two aggravated indecent assault convictions but also sexual intercourse with a six year old child. Otherwise, there were other aspects of the matter that reflected upon a situation different than here. Another example from the Crown's list, and again I am not taking the Crown to task, it was helpful in many ways, it cited a decision of Rose from 23 May 1996, where the Crown appealed against sentences which involved a good behaviour bond found to be grossly inadequate. What does not appear in the Crown's history or summary is the fact that the respondent to that particular appeal had "prior sexual offences" according to the Table of cases cited in PWB. 34. I appreciate every case is different both as to the objective facts and the subjective facts and one must be cautious in relation to relying upon comparative cases. At the same time, sometimes comparative cases may very closely relate the circumstances of the matter, I could not find any particular case cited in the matters referred to by the Crown or even in the schedule of cases of which there are many cases referred to in PWB, that provided sufficient similarity to provide a reasonable comparison to this case but some general guidance was provided. 35. There is one other feature of comparative cases particularly relying upon decisions of the Court of Criminal Appeal which obviously have greater wisdom and are of enormous help to judges. The cases heard in the Court of Criminal Appeal are cases that either the Crown has chosen to take on appeal as inadequate sentences at first instance or have been chosen by the appellant to be manifestly excessive, or complaining about some other error. As the statistics referred to by Justice Hulme in PWB make clear, of course the reality of the sentencing trends of 1994 or relevant to cases arising from events in 1993 and 1994 is not necessarily reflected in specific decisions of the Court of Criminal Appeal representing only a very small proportion of the matters dealt with in the court below. 36. This brings me to what Justice Garling has said about judicial recollection at [89]- [92] of which judges are often guilty. I have been guilty of this myself. Reflecting upon one's own experience doesn't necessarily reflect the real situation. Judicial recollection can be unreliable, alternatively someone might reflect upon something seen only through the prism of their own particular view point of a particular matter. Sometimes, of course, judicial recollection can be solely a matter of chance. With regard to other judgments I have had regard to MJL v R [2007] NSWCCA 261. It is not a "comparative" case but I note amongst other things the observations of Justice Hidden about the fact that an offender standing for sentence for offences which involve allegations of other sexual activity means that whilst the offender is only sentenced for the crimes for which he's been convicted, the crimes have to be seen in their proper context and can deny the offender the leniency if in fact they were "isolated incidents" (see [15]). 37. I am also mindful of the observations, of which there are many, concerning the need to ensure protection of children. Particularly the Crown refers me to R v Gavil [2014] NSWCCA 56 at [110]. In PWB I note what Justice Hulme said "other things being equal indecent assaults by those such as parents who are entrusted with or undertake the care of children are significantly more heinous than those by others". Of course PWB was a case involving the abuse of siblings, but over an extended period of some years with many more acts than which I am concerned now. 38. The issue of breach of trust, in any event, is particularly referred to by the learned Crown in his written submissions and other authorities are cited on this aspect. Another issue, however, that arises in this matter, again referred to briefly in the Crown's written submissions, is the issue of delay in prosecution. 39. The Crown cites the observation that: "delay is not a mitigating factor in circumstances where the offender was not left in the state uncertain suspense and where there was no delay arising from the operation of the criminal justice system such that the offender's fate was not determined for many years in particular when the offender had the benefit of delay by reason of findings about good prospects of rehabilitation...[in the context of child sexual assault offences]" (see SM v R [2014] NSW CCA 137). 1. That is absolutely true, and of course this prisoner does get the benefit of the progress of his rehabilitation, as I have already pointed out. But, it is unusual in this case in the sense that the prisoner was left in some particular position of suspense given the fact that firstly he was aware of the disclosure of these matters way back in 1994 and he reformed his ways immediately, as I would understand it, on the evidence available to me. 2. When the family broke down in 1999, he again became aware of the threat of disclosure because it became obviously apparent from what he understood that his daughter on the breakup of the marriage had gone to the police and made a statement, but he also had the fact that the allegations against him were withdrawn. Of course, he could have volunteered a plea of guilty there and then, but in the context of what I understand to be the chronology of events the allegations were withdrawn before he was even charged as I would understand it. Even if that was not absolutely correct, really no realistic opportunity was provided to him to confront the matter and get rid of it by admitting his guilt in a Court in the circumstances made known to me. 3. Then he went about rebuilding his life in the manner in which I have described, not only getting the benefit, I hasten to say, with the favourable points I have found, but also having to come back and face these allegations when he might have reasonably concluded for better or for worse, through no fault of the victim, that these matters were behind him. In my view, in that context, some of the observations that were made about the relevance of delay in sentencing such as were discussed by the Court of Criminal Appeal in Todd v R and again by the High Court in Mill v The Queen (1988) 166 CLR 59 arise for consideration. 4. In fact, in the decision of PWB, the issue of delay is expressly discussed, delay being a factor in that case in respect of a course of offending that occurred between 1982 and 1993, 1994. That particular appellant did not have to confront allegations against him until 2006 after he had married and long since left the family home and stopped abusing his siblings. Delay may justify a significant measure of leniency to an offender depending upon the circumstances of the matter which can vary. It was so observed by Justice R S Hulme and he set out reference to Todd and other decisions at [49] of that decision. It seems to me, with respect, it cannot be said that some consideration of leniency, perhaps the leniency of suspending the sentences as I have proposed, cannot be afforded to the prisoner given the unusual circumstances to which I have referred. 5. In that regard, concerning the decision to impose terms of imprisonment but suspend them, I particularly take into account the observations of Justice Howie in the decision of Zamagias ([2002] NSWCCA 17) and particularly the observations concerning the true effect, although it may not seem so to the casual observer, of the recording of a conviction, the imposition of a term of imprisonment, albeit suspended without the need to immediately serve the term of custody. 6. There is also the issue of the restraint of liberty which of itself is a significant burden placed upon the prisoner. In that regard I note some of the observations of Justice Harrison in more recent times particularly, I hasten to say, in relation to pursuant to s 10 Crimes (Sentencing Procedure) Act in the decision of R v Mauger [2012] NSWCCA 51. It might be thought, of course, that in this case there is no need to suspend the sentence to promote the rehabilitation of the prisoner, having regard to the evidence unchallenged of his rehabilitation to which I have earlier referred. That having been said, there are other matters to be taken into account as have been discussed by Justice Howie in Zamagias and Justice Johnson in Douar v R [2005] NSWCCA 455, relevant to the extension of that particular leniency, that arise. 7. I have had regard of course to the need to consider the totality of the offending in accordance with the decision of the High Court in Pearce v R [1998] 194 CLR 610. I am appreciative as I have been from the introduction of the Crimes (Sentencing Procedure) Act, before the matter was ever discussed by the Court of Criminal Appeal, that in determining the terms of imprisonment be suspended in accordance with what Justice Howie observed in Zamagias there was a need to identify the appropriate term of imprisonment for each offence and consider the relevant principles relating to the issues of totality, and then turn one's mind as to whether in those circumstances it was open, given the items of s 12, to suspend the relevant term of imprisonment. If I concluded that the total term of imprisonment would be greater than two years, I would have not ordered the suspension of the items of imprisonment. I would have imposed a total term of imprisonment that would have reflected an effective non-parole period, I hasten to say, approximately 50% of the sentence to be imposed bearing in mind that there are special circumstances in this matter, particularly the need for the prisoner to seek professional assistance to return to community living should he be imprisoned. 8. I do not have to make that decision at this point of time. I also have not concluded that the total sentence to be imposed in the context of sentencing practice at the time would be greater than two years, having regard to both the objective seriousness of the offending and in the circumstances characterised by counsel for the prisoner, but noting the relationship of the victim to the prisoner and taking into account all relevant mitigating factors that I am required to take into account. 9. In relation to count 1, you are convicted. In relation to that count, I sentence you to a term of imprisonment of one year and six months. That term of imprisonment is suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. The conditions of your bond that you will be required to enter into will be that you will be of good behaviour. Secondly, you will attend upon this Court if required to do so for sentencing if you are called up for sentencing, and thirdly you will advise the Court of any change of residential address. 10. You are required to be supervised by the Probation and Parole Service for the term of the bond, and a further condition of the bond will be that you are to report to the Community Corrections Service at Hurstville within seven days of today. With regard to the conditions of your supervision, they will include a requirement for you to undertake all psychological and sexual assault counselling directed by the Community Corrections Service of the Department of Corrections. 11. In relation to count 2 you are convicted. You are sentenced in relation to that offence to a term of imprisonment of 21 months. That term of imprisonment is suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. The conditions of the bond that you will be required to agree to in order not to serve a term of imprisonment will be identical to the conditions that I have fixed in relation to the other bond. 12. You must understand that if you are in breach of the bonds that I fix, I have the power to revoke those bonds. I have the power to make one sentence partially accumulative upon another. I also would be required, I would imagine, to fix a non-parole period in your case. It may transpire if I was required to fix a non-parole period in breach of those bonds that I would not necessarily contemplate a non-parole period of the manner that I indicated would have been fixed had I been of the view that the total term imprisonment was greater than two years. 13. HIS HONOUR: Mr Crown, are there any technical matters? 14. TATLOCK: No, your Honour. 15. HIS HONOUR: Any technical matters from you Mr Clarke? 16. CLARKE: No, your Honour. 17. HIS HONOUR: AX, you are fortunate that I have made the order that I have. The conduct that you have admitted to is not excused or even explained by the use of amphetamines it at the time. It provides some context, but it's really no excuse or explanation in behaving in this way, and if it is the truth that you are, if I might use the colloquial which you might not understand, but if you were in the mid 90s "oversexed" and were constantly desirous of sexual contact with females, again that's absolutely no excuse or explanation for what you did. You should be utterly ashamed of yourself and remained ashamed of yourself for the rest of your life. The shame that you carry with you, of course, and I'm not trying to criticise you personally, I'm just making the point the shame that you would carry with you is very much reflected in the fact that your children at this stage have had no contact with you since you separated from your wife. I appreciate the dynamics of family are such there may be many explanations for that, but one might have thought, at least in the case of your daughter, your conduct towards her when she was very young was one such contributing factor. You can leave the dock. ******** Amendments 08 July 2015 - Parties - Amendment of offender 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: 08 July 2015