District Court New South Wales Medium Neutral Citation: R v XY [2015] NSWDC 87 Hearing dates: 13 February 2015 Date of orders: 13 February 2015 Decision date: 13 February 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period 12 years and head sentence of 16 years Catchwords: CRIMINAL LAW – Sentence - Breach of trust - Sexual intercourse with a child under 10 under authority of offender - Attempted sexual intercourse with a child under 10 - Using a child under 14 for pornographic purposes - Using a child under 14 to produce child abuse material Category: Sentence Parties: The Crown XY Representation: Counsel: Mr B Campell – Crown Mr P Krisenthal - Offender Solicitors: Director of Public Prosecutions John Anthony Solicitors File Number(s): 2014/32066 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant, including the name of the accused SENTENCE 1. HIS HONOUR: Children are entitled to expect their parents to protect them from harm, to look after them, and to guide them. So when a parent harms a child in a criminal way, especially over a long period of time and merely for his own sexual gratification, the breach of trust involved is enormous and lengthy sentences must result. It would be hard to imagine a more serious breach of trust than that involved in the offences I will shortly describe. I should note of course that in some of these offences there is an element of the child being under the authority of the offender but the concept of under the authority is a wide one and it is relevant to note the particularly grave breach of trust in these offences. 2. The offender is the natural father of the complainant. I will not name him or her for obvious reasons. The offender was in a relationship with the mother of the complainant but that ended before the complainant's birth. Thereafter he would see her from time to time, usually on the weekends as part of some access arrangement. In mid-2013 the complainant moved in with the offender and the offender's then partner along with the partner's three daughters. She moved out later on and went back to live with her mother. It was at about 8.45pm one Friday evening late in January when the offender's then partner located a movie file on his mobile telephone. Obviously concerned at what she saw she contacted police. They came to the premises, looked at the movie file and immediately arrested and cautioned the offender. They seized another mobile phone. The offender was taken to the police station and then participated in an interview. He made admissions in relation to a number of offences. Further enquiries included the police interviewing the complainant. She disclosed that offending had occurred but without any particulars. Police also seized various electronic storage devices and a computer from the offender's home. They revealed further offending. 3. The accused has now pleaded guilty to 12 counts on an indictment. Although that indictment was presented in court today, it is acknowledged that the offender's pleas of guilty were entered at the earliest opportunity. 4. The first count is an offence of sexual intercourse with a child under the age of 10, that child being under the authority of the offender. That, a very serious offence, carries a maximum penalty of imprisonment for life and a standard non-parole period of 15 years. That offence was based on something that was seen on one of the offender's mobile phones. A movie file on the phone depicts the offender performing cunnilingus on his daughter, then apparently about three years of age, for two minutes and 43 seconds. 5. The next two offences are offences of attempting sexual intercourse with a person under 10 years of age. There is no standard non-parole period and the maximum penalty is 25 years' imprisonment. Also on the mobile phone were images in which it appeared that the offender was attempting to penetrate the complainant's vagina with his penis. In his interview with police the offender admitted to attempting to so do. It is hard to work out precisely when these offences were committed. The best that can be done is that on one such occasion the complainant was four years of age and on the second occasion she was about a year older. 6. The next offence, count 4 on the indictment, is another offence of sexual intercourse with a child under 10, the complainant being under the authority of the offender. Again it is based on the video file found on the offender's mobile phone. In it a further sexual act of cunnilingus is shown. This time the complainant appears to be about five years of age and the recording goes for about 11 minutes. 7. Count 5 is perhaps one of the most serious offences faced by the offender. It is another offence of sexual intercourse with a child under 10, the child being under the authority of the offender, but it concerns penile/vaginal intercourse. The charge was based on two images found on the mobile phone in which that form of sexual activity was made apparent. The offender told police that he did not believe he penetrated the child. He said something similar to a psychologist who interviewed him for the purpose of today's proceedings but by his pleas of guilty he admits that he in fact did penetrate the child's genitals with his penis. At attempt was made during submissions to suggest that the penetration may have been minor but there is no evidence one way or the other. 8. The next offence, count 6 on the indictment, is yet a further offence of the same type but this concerns a different form of sexual activity, another act of cunnilingus. This was an act that the accused admitted to despite there being no evidence on his phone. He told police that he had performed oral sex on her until they both fell asleep. 9. Count 7 concerns yet another offence of the same type but, as before, a different form of sexual act to those I have earlier described. This was based on an image located on one of the electronic storage devices found in the offender's home. It shows the complainant performing oral sex on the offender. The electronic data suggests that his daughter would have been six or seven at the time of this offence. 10. Another act of cunnilingus forms the basis of count 8 on the indictment. Again as with count 6, it is an offence that the offender admitted to despite there being no image or video file on his telephone. 11. Count 9 is another act of cunnilingus. This one is based on a movie file found on a mobile phone which shows, over a 15 minute period, the offender kissing his daughter, performing cunnilingus on her and moving his penis around the area of her vagina and anus. He is also seen to be masturbating himself in the presence of the complainant and lifting her into various sexual positions. 12. Related to the circumstance that he has filmed and photographed his daughter in the course of sexual activity is count 10, an offence of using a child under 14 for pornographic purposes. It has a maximum penalty of 14 years' imprisonment with no standard non-parole period. 13. The images and video files all show the offender performing various sexual acts upon his daughter or at least her posing naked or semi-naked for him to photograph. There were particularly disturbing images revealing just how young the offender's daughter was when he began abusing her. An image which the offender said would have been taken when she was either 12 or 13 months, (not years but months), showed her touching his penis and at age 14 months there was an image that showed the offender and his daughter naked with her sitting on his genitals. Other disturbing images were found on an SD card. 14. We now come to count 11, an offence of using a child under 14 to produce child abuse material, again based on the contents of the mobile telephone and electronic storage devices. The images and the videos are of varying acts and poses. The offender kept them for his own sexual gratification. In most of the images the complainant is about four years of age.Of course it is important not to double count here because some of the images showed offending already covered by an earlier offence. 15. The final count to which the offender pleaded guilty is of a different type in that he has photographed a different person. Whilst the 13 year old daughter of his then partner was having a bath, the offender managed to take video footage of her naked. He cut a few stills out of that video footage and then deleted the footage. These images were taken only a few months before his arrest. 16. The result is that the offender has been shown to have used his daughter in a sexual way for a significant length of time, commencing from when she was very, very young indeed. As I mentioned, the first occasion in which it is apparent that he has abused his daughter occurred when she was barely one year of age and those offences continued until she was seven years of age, still a remarkably young girl. The offences of course did not stop because the offender chose to stop doing what he was doing. They only stopped because he was discovered. 17. There are thus five offences involving cunnilingus from when the complainant was three to when she was seven, one offence involving fellatio when the complainant was six or seven, one offence of penile/vaginal intercourse when the complainant was six and two attempted acts of penile/vaginal intercourse when she was four and five. Nor were these offences fleeting on occasions. I have mentioned already the length of time that some of the offending took. In count 4 it was 11 minutes and count 9 it was 15 minutes. 18. So what resulted from this? Well entirely as should be and could be expected, significant harm. That harm to the offender's daughter is enormous and ongoing. The victim impact statement prepared by her mother and read by the Crown Prosecutor today spoke eloquently of the damage that the accused wilfully caused his daughter simply, to repeat a point I have made earlier, for his own sexual gratification. 19. The offender is, apart from a relatively minor matter involving a failure to lodge a tax return, a man with no previous convictions. He was born in Sydney and reported a happy early childhood. His father worked in construction and surveying, was often away from home and his mother was a full-time housewife who loved and supported him. His school experience was not a happy one. He said that he was bullied. His academic performance was average but managed to finish Year 12 and enter TAFE. He did an apprenticeship and has worked in a number of positions. At the time of his offending he was a nursing assistant in the aged care industry. 20. He had a history of suicide attempts in 2001 in the context of a depressive episode and in 2007 in the context of interpersonal conflicts with his ex-partner and work related stress. Very tragically in April of last year, while the offender was in custody, his father committed suicide. 21. A significant part of the offender's childhood, at least insofar as it concerns its effects upon him, was the fact that he himself was the victim of sexual abuse at the hands of his older brother. This abuse was non-consensual, recurrent and involved both anal and oral sex. That is of course - I know I am stating the obvious - a noteworthy circumstance in the upbringing of any child. Evidence as to whether there was a causal link between the experience of the offender as being the victim of sexual abuse and in being the perpetrator of sexual abuse was called. As I understand the evidence, the psychologist says there is a link which is difficult to quantify. By that, I think the psychologist means that the offender was more likely to become a child abuser because he himself had been abused. That of course is a long way short of establishing causation. Enormous numbers of people who are abused do not go on to become abusers themselves. Certainly the offender is entitled to sympathy for having been abused as a child but I make an obvious point: he, more than most, should have been fully aware of the harm that he was causing his own daughter. 22. I will take into account as a mitigating feature in the offender's favour the circumstance that he was abused himself but it does not make a great deal of difference to the ultimate result. I note also that the offender has expressed his remorse to the psychologist who interviewed him for today's proceedings. It would have been better if of course the offender had repeated these expressions of remorse in the witness box but despite that, I accept that the offender, perhaps belatedly in the light of what he told police at his first interview, understands the gravity of his misconduct and is sorry for it. 23. There is other evidence of remorse to be found apart from what is contained in the psychological report. His plea of guilty came at the earliest opportunity as I have already mentioned and his voluntary disclosure of the two offences, those being in count 6 and 8, do suggest that the offender is genuinely sorry for what he has done to his daughter. I should indicate of course that the plea of guilty entitles the offender to a discount on the sentence that would have been imposed otherwise to reflect the utilitarian value of that plea. The sentence, because it will be an aggregate one, will thus be 25% less than it would have been in the absence of such a plea. 24. 24 One circumstance relied on by Mr Krisenthal, who appears for the offender, is that there was no violence or threats involved in any of the offences. I suppose that is true that these offences would have been more serious if they were but as was clear, the offender was well able to achieve his objective without violence or threats. He was able to completely sexualise the relationship between himself and his daughter. He did not need to use violence. He did not need to use threats. By starting at such a young age, his daughter came to believe that what was happening between them was entirely normal. She participated in the events I have described because, contrary to what was required, the offender did not protect his daughter. He did not guide her. He abused her for his own purposes. 25. I should note that I have taken into account the maximum penalties. Life imprisonment in some cases and the standard non-parole periods where appropriate in determining the indicative sentences which go up to make up my aggregate sentence. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 26. As far as the prospects of rehabilitation are concerned, well they are hard to assess accurately, especially given the length of time before the offender will have the opportunity to reoffend. Cautious optimism is perhaps indicated as the offender does appear to be motivated. He will be treated whilst in custody and he will be a much older man when he is eventually released. There are no special circumstances in this case. I consider that the length of the parole period that I will shortly announce is adequate, indeed more so, to allow any rehabilitation once the offender is released back into the community and in any case the aggregate non-parole period I will announce very shortly represents the minimum time that the offender should spend in custody given the objective gravity of his offending. 27. I will indicate the indicative sentences that I would have imposed were it not for the imposing an aggregate sentence as follows. Count 1 - six years' imprisonment with a non-parole period of four. Counts 2 and 3 - on each it would have been four years' imprisonment. Count 4 - imprisonment for six years with a four year non-parole period. Count 5 - imprisonment for seven years with a five year non-parole period. Count 6 - imprisonment for five years with a three year non-parole period. Count 7 - imprisonment for seven years with a five year non-parole period. Count 8 - imprisonment for five years with a three year non-parole period. Count 9 - imprisonment for six years with a four year non-parole period. Counts 10 and 11 - four years' imprisonment. Count 12 - one year's imprisonment. 1. The aggregate sentence I impose consists of a non-parole period of 12 years and a head sentence of 16 years. The sentence commenced on 31 January 2014. The non-parole period will expire on 30 January 2026, on which day the offender is eligible to be released to parole. 2. I remind everyone that there is to be no publication of any evidence which will identify or tend to identify the complainant in these proceedings. That of course would include the name of the offender, given the relationship between them. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2015