District Court New South Wales Medium Neutral Citation: R v BKA [2017] NSWDC 468 Hearing dates: 27 March 2017; 1 February 2017; 14 December 2016 Date of orders: 27 March 2017 Decision date: 27 March 2017 Jurisdiction: Criminal Before: Hunt DCJ Decision: Taking into account the matters on a Form 1 the offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 15 years imprisonment with a non-parole period of 10½ years. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Sexual intercourse with person under 10 years of age – Aggravation – Under authority of offender at time of offending – Incite person under 10 years of age to commit an act of indecency – Grooming – Assault and commit act of indecency with a person under the age of 16 years - Assault and commit act of indecency with a person under that age of 10 years – Aggravated indecent assault – Possess unregistered firearm – Prohibited pistol Legislation Cited: Crimes Act 1900 (NSW Crimes (Sentencing Procedure) Act 1986 (NSW Criminal Procedure Act 1986 (NSW) Firearms Act 1996 (NSW) Weapons Prohibition Act 1998 (NSW). Cases Cited: R v BJW [2000] NSWCCA 60, [20] – [21] R v Hudson (unreported) Court of Criminal Appeal 30.7.98 R v L (unreported) Court of Criminal Appeal 17.6 96 R v M A [2004] NSWCCA 92 R v Nguyen and Pham [2010] NSWCCA 238 Category: Sentence Parties: The Crown BKA Representation: Counsel: R Howle – The Crown D Marr – The Offender Solicitors: Director of Public Prosecutions File Number(s): 2014/296213 Publication restriction: There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants. Judgment 1. HIS HONOUR: At the outset it should be noted that s 578A(2) of the Crimes Act 1900 (NSW) precludes the publication of any matter that identifies or is likely to lead to identification of the victims, and for that purpose I refer to the offender, who is the step-grandfather of the victims, as BKA. 2. The offender pleads guilty to two sets of offences. In relation to offences against CD and DD the offender was committed for trial on 25 June 2015. He entered pleas of guilty to four counts on an indictment on the first date that the matters were listed for trial being 2 May 2016. Those offences were: Count 1, 1. Sexual intercourse with a person under the age of ten years, that person CD being under the offender's authority in breach of s 66A(2) of the Crimes Act. All references in relation to the offences in relation to CD and DD are to the Crimes Act 1900 (NSW) (the Act). The maximum penalty for that offence is life imprisonment and a standard non-parole of 15 years applies. Count 2 1. Inciting CD, being a victim under the age of ten years, to commit an indecent act in breach of s 61O(2) of the Act. The maximum penalty for that offence is seven years imprisonment and no standard non-parole period applies. 2. In relation to count 1, I am invited by the parties to and will take into account the following offences on the Form 1: 1. Groom child for sexual activity in breach of s 66EB(3) of the Act, maximum penalty if on indictment is 12 years imprisonment and there is no standard non-parole period given the date of the offence. 2. An assault and commit act of indecency on a child under the age of ten years in breach of s 61O(2) of the Act. The maximum penalty on indictment being seven years imprisonment and no standard non-parole period applies. Count 3 1. Assault and commit an act of indecency on DD, a person then under the age of 16 years being between six and eight years in breach of s 61M(2) of the Act. The maximum penalty for that offence is ten years and the standard non-parole period of eight years has application. Count 4 1. Sexual intercourse with a person under ten years in breach of s 66A(1) of the Act, the maximum penalty for that offence is 25 years imprisonment and a standard non-parole period of 15 years applies. 2. In relation to count 4, I am invited by the parties to and I will take into account the following offences on a Form 1: 1. Groom child for sexual activity in breach of s 66EB(3) of the Act. The maximum penalty on indictment is 12 years imprisonment and no standard non-parole period applies given the date of the offence; and 2. Two offences of assault and commit acts of indecency on a child under the age of ten years in breach of s 61O of the Act. The maximum penalty on indictment for each of those offences is seven years imprisonment and no standard non-parole period applies. 1. In relation to a further set of offences, all in breach of the Firearms Act 1996 (NSW) or other legislation in relation to firearms, the offender was committed for sentence on 24 June 2015. He adhered to his plea before me in the District Court to an offence of possession of more than three unregistered firearms being three prohibited firearms and one pistol in breach of s 51D of the Firearms Act 1996 (NSW) to which a maximum penalty of 20 years imprisonment and a standard non-parole period of ten years applies. 2. BKA also asked me to take into account seven other matters in relation to firearms before the Court on a Form 1 and I will do so in due course. 3. The facts in relation to both matters are agreed facts before me and I intend to read all of those onto the record. 4. The offender was born in 1949, he is the step-grandfather of the two complainants, CD born 2004 and DD born 2005. CD and DD are sisters. At the time the facts were prepared the offender was 66 years of age. At the time the facts were prepared CD and DD were 11 and ten years old respectively. Prior to his arrest, the offender resided at an address known to the Court with his long term de facto partner LO who is the maternal grandmother of CD and DD. The offender and LO slept in separate bedrooms. CD and DD resided close by with an elder sibling and their parents. 5. At the time of the offences CD and DD attended a local primary school. After school about once or twice a week they would visit the offender and their grandmother at their home which was close to the school. Sometimes CD and DD would visit together and at other times they would visit separately. They would generally go over and play games on the offender's computers which were located in the study and in the back room of the house. At the time they did not have access to a functional computer or to the internet at their own home. Sometimes when DD was in the house she would close the door to the study whilst she was in there with the offender. The offender kept several knives in the study which were in pouches and in other scabbards. On one occasion between October 2012 and April 2014, DD told her grandmother that she shut the door because the offender was showing her knives and that it was their "secret." At the time, the grandmother did not think anything of this, however, she asked DD to keep the door open as there was no reason for it to be closed. 6. One afternoon during the second half of 2014, CD who was then nine years old finished school at about 3pm. She walked to a spot where her father was waiting to collect her and asked him whether she could stay with the offender for the afternoon to use his computers. Her father gave CD permission to stay with the offender. The grandmother was at work at the relevant time. CD entered the house and proceeded to watch videos of Sims 3 via YouTube on a computer in the study. The offender was also in the room using a separate computer. The offender turned towards CD and said: "C can I please put my finger in your fanny?" C said, "Yes" because she did not like upsetting people and she wanted to make the offender happy. She got off the chair where she had been seated and walked towards the offender. C stood in front of the offender who was seated on a chair near his computer. She pulled her pants and underpants down and spread her legs. The offender then used his right hand to digitally penetrate C's vagina. C told the offender that this hurt and asked him to stop but he continued to move his finger around inside her vagina for about 30 to 60 seconds while C was fidgeting. The offender asked C to stay still. She tried to but was unable to. Those facts account for count 1 on the indictment. 7. When the offender finished, C walked to the closest bathroom which was the master bathroom so that she could use the toilet. After going to the toilet, she wiped her vagina with toilet paper and noticed there was blood on it. She returned to the study and sat down on a chair where she continued to play on the computer. The offender said to her: "I'm sorry if I hurt you". Some time later the grandmother returned from work and CD's mother came to collect her and take her home. Later that night CD told her mother that she had gone to the toilet that day and noticed blood on the toilet paper after she had wiped herself. Her mother believed that CD was starting to menstruate so she showed her how to use a pad and how to put it in her underwear. 8. For the next few months CD complained to her mother about having a sore vagina. She would request to have a bath rather than a shower because it would help to ease the pain. CD's mother did not understand why CD was having this pain but thought it was part of growing up and reaching puberty. 9. At around 9pm on 27 September 2014, her mother gave CD a bath. At this time CD was still complaining about soreness in her vagina. After the bath, CD had a conversation with her mother in the mother's bedroom. CD started crying and said: "You know how you asked me if I had put my finger in there, I haven't but someone else has. It was Pop. I didn't want to disappoint Pop". CD then asked her mother whether this was why her vagina was sore. The allegation was then disclosed to CD's father. The matter was reported to police at Narellan Police Station on 28 September 2014 which was the next day. CD was medically examined at Liverpool Hospital in mid-October 2014. The examination was mostly unremarkable but during the genital examination the medical practitioner noted a: "Small notch on the hymen at about 5 to 6 o'clock". Swabs and cultures were taken for later analysis. Happily no infections or transmissible diseases were found. The medical practitioner indicated that given the nature of the allegation that this was considered to have been unlikely but the swabs were taken as a matter of precaution. The expert was not of the view that the ongoing physical symptoms described by the complainant were as a result of physical injury. Her opinion was that nay injury associated with the touching of the genital region was usually superficial and would heal within a few days without scarring. No opinion was apparently provided in relation to the irregularity noted to CD's hymen. 10. On 2 October 2014, CD participated in an interview with officers from Liverpool Joint Investigation Response Team otherwise known as JIRT where she repeated the disclosure set out above in relation to count 1. On 9 October 2014, police lawfully executed a search warrant at the offender's residence. The offender was arrested for unrelated matters being the firearms and weapons matters for which he will also be sentenced today and conveyed to Narellan Police Station. While at the Police Station, police searched the offender's wallet. Inside the wallet was a handwritten note which read: "I like Pop licking my fanny and rubbing my fanny. I like sucking Pop's dick xoxo. I want Pop to fuck me one day xoxoxo. I like Pop doing his bud and I like seeing his Dick xoxoxo". There were ticks next to various parts of that letter. The offender was conveyed back to his residence so that the search warrant could be resumed in his presence. During this process a number of computers and associated items were seized as exhibits. The two main computers used by the offender and two USB drives were analysed. Police located an amount of pornography but nothing that relates to evidence in this matter. 11. The offender participated in an electronically recorded interview with police later that day. During the interview, the accused stated that he was in receipt of a disability pension. He provided the following information referable to the alleged offence. He did not recall a time when CD was at the house on her own with him after school but agreed that she was always on the computer watching YouTube when she was there. He said that CD had an iPad or an iPhone that she would use when she went into the study. She would start looking at things and showing him things that were not 100% appropriate. She would show him nude photos and a video of a couple in bed having sex. These were accessed through his internet. He stated he did not want to make any formal complaint about this because CD did not deserve it. He did not know how CD had logged into his internet network because he never gave his password. He assumed that she had obtained the password from her older brother. He said he should have done something about the photos and video but did not because: "CD had a few issues" and that he had them too. He indicated that he needed help stating this was the first chance that he had in 12 years to get it. He said: "Things happen and I made mistakes. I need help, I need a bloody lot of it". 12. When asked what he meant by this, he stated that he needed to work out what was best for CD because she was the most important thing in the whole issue and that he did not want her to suffer. He said that he was guilty and that police had let him off the hook. Psychologically since his arrest, he was feeling better than he had in the last ten years. He said that he would not call CD a liar and would plead guilty to whatever she said. He indicated that he did not want to know the nature of the allegation. He said that he had an issue with CD in his head which he could not control. It was an issue with CD only and not anyone else. 13. He stated that he had problems "downstairs" for about ten or 12 years because he was diabetic. Whilst his body had let him down, his head had kept going and he had experienced urges. At first it was minimal but it did strengthen. On several occasions he had tried to talk to his psychologist about it but felt that he was unable to do so. When the urges came on, he would watch videos. On one occasion when an urge came on, CD was in the room with him playing on her iPad or iPhone and things went from there. CD told him that she had pubic hairs and showed him. In response, he touched her on the outside of her vagina with her hands. This occurred after school around August 2014 when CD was under his authority. He thinks that he also used a vibrating thing on CD at one point. He told her to put it on her vagina and said: "You might like it". Those last facts go to count 4 and count 2 on the indictment. 14. The offender described CD as both sensitive and a passionate young girl. He said that he was not proud of what he had done and hopes that CD would not suffer from it. He denied touching anyone other than CD. When told that the allegation by CD related to something more than touching, the offender said that CD had an imagination and was a bit of a story teller but that she had a great memory and did not forget much. He did not recall asking CD whether he could: "Put my finger in your fanny". However, he said he knew how he felt at the time and that it was possible that he did say it. He agreed that CD said, "Okay", stood up next to him, moved her clothes and spread her legs. He denied inserting his finger into her vagina. When asked whether he penetrated her, he replied: "No, I don't think so" but agreed there was a possibility that there may have been some small amount of penetration. He did not deny telling her to stay still because she was squirming. He did not deny CD saying: "Ouch, that hurts, could you please stop" indicating that whilst he did not relate to it, it may have happened. He accepted that he may have said: "Sorry if I hurt you". He agreed that it was possible that CD's version was the correct version stating she was not the sort of girl who would make up a story like that. He denied being sexually abused as a child. The offender was shown the note seized by police during the search warrant. He said that the note had to be written by CD because that is where his issue lay. He said that CD did not write like that and would not know how to spell the words. 15. He indicated that the letter was related to the YouTube video she would show him. CD would say, "Is this good fun". The offender agreed that the reference to "rubbing my fanny" would relate to a time when he touched CD's vagina. When asked about the reference to, "I like sucking pop's dick", he said that he did not specifically recognise the wording on the note and that he had not taken much notice. 16. He was unable to say why he kept the letter in his wallet but indicated that he must have "felt something special about it". He denied licking CD's vagina or letting CD perform fellatio on him. He admitted to showing CD his penis once while she came in the shower while he was having a shower. The same thing occurred with DD when they were bathing. It was just part of what they did. 17. He stated that CD would take "this close" on the shoulder but that if he was not there and the grandmother was not there that she would suffer from it and he did not want that to happen. He said that CD had a few issues and he was probably the only one that could help protect her. 18. On 14 October 2014 CD was reinterviewed by officers from Liverpool JIRT in relation to the letter. CD recalled being at the offender's house one day when the grandmother was away and seeing the offender watching rude videos on his computer. She was playing with the offender's dogs at the time. The video depicted young adults taking their clothes off and kissing different parts of their bodies. 19. The offender did not ask CD to watch the video but she was able to see it when she peeked in the door to the study after opening it. She said that the offender did not realise that she was there. This occurred when CD was nine years old. She said she had seen it happen a couple of times when no one else was home. CD stated that seeing the videos gave her a weird feeling at her fanny which she could not describe. 20. CD denied writing the accused any letters or notes. When shown a copy of the letter CD informed police that the letter was written in DD's handwriting and that she had seen her write the letter and give it to the offender towards the beginning of 2013. She saw the offender read the note and then place it on the desk. CD had seen three or four other notes from DD on different dates between 2012 and 13. DD had asked CD to help spell words like, dick, and, fuck, while she was writing the notes. CD stated that the offender had asked her to write a note "like this" once. She never actually wrote the note because she did not really want to. 21. Upon further questioning about the note CD revealed that the offender had told her "he used to do this kind of stuff" with DD. He was watching rude videos in the study with CD who was seated next to him when he said this and he pointed towards the video directing CD's attention to it. The video depicted persons kissing. The offender did not tell CD what DD did. She believed that she was shown the video towards the end of 2013. The showing of the video to CD forms the grooming charge that is on the form 1 relative to count 1. 22. CD stated that the offender showed her another video in 2013 which he had secretly recorded in the study. The video depicted DD playing with the offender's penis underneath the desk which went around the room. DD was wobbling his penis around and stretching it. CD said she was in the room when the video was recorded but she did not see DD playing with the offender's penis because there was "stuff covering it up" which prevented her from seeing DD. When the offender showed her the recording she could not really recognise DD but the offender told CD that it was her. 23. The grandmother was at home at the time when the offender showed the video of DD but the door to the study was closed. The video of DD as described by CD was not recovered during the execution of the search warrant. 24. On another occasion, being around between the beginning of January 2014 and near the end of March 2014 when CD and the offender were alone in the study playing games or watching videos, the offender told her that he wanted to show her something. When she looked towards him he pulled down his pants and showed her his penis which looked small and soft. She turned her head and looked away. CD denied ever touching the offender's penis. That latter matter forms the other matter on the form 1, to count 1 being the aggravated commission of an act of indecency. 25. On another occasion at a date unknown when CD was in the study with the offender, the offender asked CD, "Can I please fuck you?" CD understood fuck to be another word for sex but did not know what sex was. She stated that the offender used, fuck, for sex. She believed it meant seeing her naked and kissing her on the lips. The offender had taught her this when she was six in 2011. He also told her how to spell these words. CD felt weird in her fanny when he said these things. 26. In light of the information provided by CD, DD was later questioned by officers from Liverpool JIRT on 14 October 2014. After some prompting DD informed police that the offender had shown her "rude stuff", that she "didn't want to watch" while she was alone with him in the study at his home. He did this "a few times" between 2012 and 2013 until she told him she did not want to "do this anymore" and he got upset. The rude stuff which the offender showed her were videos on the offender's computer. They depicted boys and girls in a room by themselves. They would get undressed and show each other their body parts. The boys and girls in the video would touch each other all over their body including their rude parts. 27. It should be noted that whilst DD expressed the participants in the video as boys and girls there is no suggestion that child pornography was found on the offender's computer. The door to the study was always closed when the offender showed such videos to DD. DD wanted to tell her parents about it but did not do so out of fear that she would get into trouble. Those facts relate to one of the three matters on the form 1 to count 4 which is the grooming charge. 28. DD disclosed that the offender had "made her touch his rude part or doodle" when she was eight years old. She believes that this occurred on a school day. The offender was sitting on a chair in front of his computer at the study. DD was also in the room playing with the separate computer. She went under the desk to grab something which she had dropped and the offender said, "While you're under there touch my doodle." DD said, "No", but he insisted and repeatedly told her to "do it" and eventually she did. DD believes that she touched his penis with her hands. She said this was "gross" and that the offender's penis was "wrinkly". While holding the offender's penis DD moved her hand up and down for about a second because the offender told her to. She then stopped and moved out from the desk. 29. As far as DD was aware the offender did not record this. She did not disclose the offence because she was scared of getting into trouble or getting grounded. Those facts relate to one of the other matters on the form 1 to count 4, being one of the aggravated indecent assaults. 30. DD was shown a copy of the letter, and asked whether she wrote it, and responded, "I think so". She denied being told to write the letter or getting help with the spelling. 31. She disclosed that the offender had "licked her fanny" with his tongue once in the study when she was seven or eight years old. She was wearing a dress and underwear at the time. She believes it occurred on a school day. He licked her vagina when she was not looking. He bent over and did it but she did not notice. They were both sitting down in the study at the time. He did this for about a second and said something about, sugar. 32. She then left and walked out to the bathroom. When pressed for further details DD could not recall whether the offender licked her fanny or her underpants. She believed that the offender moved her underwear to the side before he licked her but she did not specifically recall him doing so on this day. She did not disclose the offence because she was scared. Those facts form the facts to the other aggravated indecent assault on the form 1 to count 4. 33. DD further disclosed that on a separate day and also in the offender's study the offender had moved her underwear to the side and rubbed her fanny for about two seconds. Those facts constitute the aggravated indecent assault that is count 3. 34. DD stated that she wrote, "I like sucking pop's dick", because she wanted him to feel happy, indicating that the offender liked her to write these sorts of things that, even though she did not like writing them because they made her unsurprisingly feel uncomfortable. She stated that she had wanted to tell her parents about the letter but was too scared to do so. 35. Upon further questioning, DD disclosed that the offender had asked her to suck his penis once when she was eight years old and she was in the study alone with him on a weekend. DD had dropped a toy on the ground and went under the desk to retrieve it. She stated that she sucked his penis with her mouth for a short period whilst she was under the desk retrieving the toy. She believed that she kept her mouth still. It made her feel wrong and she stopped when her mother came in to tell her that dinner was ready. She got up and ran out of the room. The mother could not see what DD and the offender were doing because the offender's back was to the door. Those facts constitute count 4 on the indictment which is, sexual intercourse with a person less than the age of ten years, in breach of s 66A(1) of the Act. 36. When asked who had made the ticks on the letter DD said, "I think it was me or pop". She stated that the offender had told her what sentences to write in the letter and that she did not know what the sentences meant. DD gave the letter to the offender after she wrote it. She saw him place the letter in his wallet. She did not say when the letter was written and did not recall writing any other letters. 37. During the interview DD also stated that the offender had told her that he would have sex with her when she grew up. This conversation had also occurred in the offender's study. 38. On 11 November 2014 police attended Silverwater Metropolitan Remand Centre to speak to the offender regarding the offences committed against DD. After receiving legal advice the offender exercised his right to silence. The offender was then charged with the sexual matters which are now before the Court. Those facts have been signed by the Crown prosecutor originally involved in the matter and the offender. 39. I am now going to read the facts that go to the firearms and weapons matters. On 9 October 2014 police lawfully executed a search warrant at the offender's residence. The offender was asked whether he had anything at the premises which he wanted to declare. He informed the police that he had three or four unregistered firearms which he had been in possession of for a number of years, indicating that the items were wrapped up in a blanket under the bed in the master bedroom which was occupied by the offender. 40. Police searched the master bedroom and located a sleeping bag underneath the offender's bed. That bag was opened in the presence of the offender. Inside the police located the following three item firearms, a pistol and a prohibited weapon, which were all unsecured. There was a 1 x 8 millimetre Mauser calibre model 98 repeating bolt action rifle which was subsequently test fired and found to be in working order. The internal box magazine had the capacity to hold five x 8 millimetre cartridges. The rifle was deemed to be a firearm 1.22 short calibre Winchester single shot bolt action rifle which was subsequently test fired. 41. During the test firing the exhibit bolt failed to remain in the locked position for the entire firing cycle, which caused damaged to the firing pin housing. As a result, only one cartridge was discharged from it. It was deemed to be a firearm 1.243 Winchester calibre repeating lever action rifle with a telescopic sight attached which was test fired and found to be in working order. The detachable box magazine had the capacity to hold four cartridges. It was deemed to be a firearm and a .455 Webley calibre six-chamber revolver which was deemed to be a pistol. There was a Marksman slingshot which was in working order that was not a homemade slingshot. 42. There was a disassembled Barnett crossbow which did not fall within the definition of prohibited weapon because it was disassembled. There was a green canvas bag with the firearms that contained a brown wooden rifle stop, a rifle cleaning kit, a bolt action for the rifles, 38 unknown manufacturer crossbow bolts, 119 lead shot for the slingshot and various ammunition including 19 fired Winchester cartridges, 2 Winchester cartridges, a .45 calibre bullet, 106 Mauser cartridges, 20 Remington calibre fired cartridges, 2 Mauser fired cartridge cases, a British cartridge, a Remington cartridge, a special calibre fired cartridge, 3 Winchester magnum cartridges and 7 x .22 long calibre cartridges. There is some analysis that did not result in particular charges being pursued. 43. The offender participated in an electronically recorded interview with police later on the day of the execution of the search warrant. During the interview the offender stated that he was in receipt of a disability pension. He stated the following information in relation to the weapons, including the firearms and the pistol. He made admissions to owning all the weapons. 44. The .22 rifle was an old rifle he had found in a garbage bin; he had not used it and believed it was inoperable. Further, he would not be game to try it in its current condition. 45. He purchased the 2.43 rifle in about 1968 because he used to be an avid pig shooter. One day a pin inside it had broken. He had stripped it down and was unable to get parts for it. He was hopeful that one day he would find the part, so he had left it there. He assumed it was an offence to have the firearm even though it was broken. He said there was no requirement to register firearms when he first purchased it. 46. The Mauser was given to him by a lady in the 1970s whose husband had brought it back from the war. Initially it had been his intention to give it to the RSL because of its antique value. He had spoken to somebody at the Camden RSL about this about 25 years ago, however he fell in love with it and kept it. He knew it was illegal to own military weapons, but it was a passion that he had. He stated he hoped it would now be put in a museum. 47. He said that the revolver was also an antique weapon which had been given to him anonymously more than 30 years prior. This was left at his house in a shoe box one morning. He did not hand it in to police at the time because of his weak-hearted passion for firearms. He hoped that the police would do something with it now that it was in their possession. He believed that the revolver had come from the British army during the Crimean War. When he got it, it had a broken spring. He had made a dummy spring out of galvanised metal to check that the mechanism functioned. He said that other than this it was inoperable in its current condition. 48. He knew he required a specialised category of licence for the revolver. He agreed that there was an assorted mixture of ammunition, including ammunition from another rifle that he had owned many years ago. He had kept them together either out of complacency or stupidity. He stated that the firearms were unregistered and that he did not hold a firearms licence. However, he had previously had a collector's licence when he was involved in the movie Mad Max. At that stage he had a very large collection of weapons which were primarily used in movies. 49. He had subsequently sold most of the weapons to a man in Balmain who was also involved in movies, but he had kept a few of them. His collector's licence had lapsed in the early 1960s or 1970s. He had also had some type of firearms licence when he worked for ASIO. He was aware of the requirement that all firearms be stored in a safe and he agreed that he did not have a safe in the house to store them. He had obtained the crossbow through the Trading Post about 25 to 30 years ago and he purchased the bolt through e-Bay about two years ago. He had used it for target shooting in the backyard. He was unaware that a crossbow, when assembled, was a prohibited weapon. 50. He purchased the slingshot and lead shots off e-Bay a long time ago. He did this because he used to make slingshots as a kid when he considered them to be a toy. He never really thought about whether such a thing was a prohibited weapon or not. He was charged with the offences before the Court. The facts in that matter are signed by the solicitor who was involved in the matter in December 2016 and by the offender. 51. In relation to count 1, CD as the victim was relatively young at the age of nine years old. That age was towards the top of the relevant age range for this particular offence which is in relation to victims being under the age of ten years. It is an element of that particular offence that CD was under the offender's authority when he had sexual intercourse with her by way of digital penetration. On this particular count I will not treat the breach of trust as an aggravating circumstances, as it is in relation to all the other items of sexual offending. That it simply because the charge includes as an aggravating circumstance that CD was under the offender's authority at the time of the offence. 52. It aggravates the objective seriousness of count 1 that CD bled as a result of the digital penetration of her, that the offending proceeded despite CD asking the offender to stop what he was doing, and that he continued to move his finger inside her vagina thereafter for about 30 to 60 seconds. I accept the Crown submission that that matter falls just below the mid range of objective seriousness, taking into account the range of behaviours, the ages of the victim, and other absent aggravating circumstances that can be present in other types of cases. 53. The matters on the Form 1 to count 1 are both serious offences that were committed at discrete occasions and different occasions to count 1. Necessarily that will place upward pressure on the sentence as it will be necessary to increase the sentence that would otherwise apply taking into account those two matters. 54. In relation to count 2, that particular matter came to attention as a result of admissions made by the offender. In due course I will, without applying an identified discount, take into account the extent to which the offender provided information about this and other offending that was not otherwise known to the authorities. 55. In relation to the objective seriousness of count 2, that matter is aggravated by the breach of trust that is implicit. At an age of somewhere between six and nine years CD was somewhat younger than the outside age of being under ten years. The use of an implement such as a vibrator makes the matter more serious, and I consider the objective seriousness of that matter, taking into account a breach of trust, is at the mid range. 56. In relation to count 3, which is an assault and committing an act of indecency on DD at a time she was six to eight years of age. That is a very tender age of years compared with the offence which requires that the child be under the age of 16 years. Additionally, the offence involved skin on skin contact. There was a breach of trust. The offence was relatively short-lived over a couple of seconds and I assess objectively that that matter falls just below the mid range of objective seriousness for those reasons. 57. Count 4 is the allegation of sexual intercourse with DD, she then being a child under the age of ten years being eight years old. The form of sexual intercourse was the sucking of the offender's penis. Having regard to the breach of trust, the nature of the particular kind of sexual intercourse and the age range, I find the offending in that matter to be at the mid range. 58. The Form 1 matters in relation to count 3 are three serious matters, each occurring on different occasions, which will necessarily have an impact in terms of the penalty being increased than if count 4 was being dealt with on its own terms. 59. I come to some matters that are now personal to the offender who is now 67 years of age and was some years younger depending on the time of commission of the offences which were relatively recent in time. The offender has only one matter on his criminal record which is a goods in custody charge for which he was fined $500 in 1990. I am prepared to treat him for current purposes as being a person of prior good character. He is entitled to some leniency as a result of that. 60. This is not a case such as with foster carers or school teachers in which the absence of any criminal record put the offender in the position, have CD and DD under his authority and in his care. Against that, though, I have regard to principles that good character when one considers this class of offending has less weight in the calculus than in other kinds of sentencing exercises. 61. The offender was the eldest of six children to parents who provided him, on his report to Dr Allnutt, with a "loving and supportive familial environment without any exposure to domestic violence, sexual abuse or physical violence". Uneventfully, the offender reached year 9 at high school without any behavioural issues after some early employment as a teenager. After leaving school the offender was self-employed as an engineer from that time until he retired in 1992. He retired as a result of his disability, his diabetes then causing him difficulties even at that early stage. He revisited employment in the early 2000s and then proceeded, after some years, to accept the disability pension. 62. The offender was married for 17 years between 1972 and 1989. He was thereafter in a lengthy de facto relationship with the grandmother of his victims. That relationship, as I understand it, is now over as a result of these offences. 63. The offender suffers and has for some years suffered from a number of serious medical conditions. I have had regard to material that has been tendered on his behalf, both a report of Dr Stephen Allnutt, forensic psychiatrist, and a neuropsychological assessment that was conducted at Dr Allnutt's request by Amanda J White, clinical neuropsychologist, together with some significant extracts from his Justice Health records in relation to his treatment assessment and various admissions to hospital since he has been in custody for these matters since 9 October 2014. 64. Among other things, across his life he has had open heart surgery and bariatric surgery which at one stage significantly improved morbid obesity that he had suffered from for a long time. He has had two cataract surgeries and teeth surgery. He has had, at least on my calculation, three admissions to different hospitals while he has been on remand in relation to the index offences. 65. His sexual prehistory before these offences is unremarkable. He reported two non-consensual sexual events when he was aged 12 and 13, some improper touching of him by a cadet leader and another sexual event that involved a 30 year old woman. Given I have not heard sworn evidence from the offender, I am not in a position to make a finding on the balance of probabilities in his favour that he was sexually abused, but if that was the case, that may explain to some degree the proclivity to offend in this particular way, although it certainly does not excuse it. 66. In terms of assessing the offender's prospects for rehabilitation I accept that I need to be guarded in terms of that part of Dr Allnutt's report (which rests on the offender's history given to him) given that I have not sworn evidence from the offender himself. Helpfully, Dr Allnutt summarises some of the offender's medical conditions, which I am prepared to give weight to because I have seen material in the Justice Health records that corroborates that material. As I have said, Dr Allnutt thought it was important to rule out an underlying neurocognitive disorder in regard to the offender's executive functioning, and that was effectively done by Ms White's report. 67. The doctor records, among the medical problems that the offender continues to suffer from is diabetes mellitus, high blood pressure, atrial fibrillation, cardiovascular heart disease, including positioning of a stent as well as a valve defect, peripheral oedema, cellulitis, peripheral neuropathy, cataract problems, obstructive sleep apnoea and, as noted by me earlier, problems with his weight and obesity. Dr Allnutt did not find any mental difficulties that could be seen as creating a causal link with the offending. Relevantly, Dr Allnutt diagnoses the offender as having behaviour consistent, given his offending with DD and CD, with a heterosexual paedophilic disorder. 68. He describes paedophilic disorder as a recognised psychiatric condition for which there is no "cure." It is a condition that is managed through a sex offender rehabilitation program. Dr Allnutt has made some assessment of factors that might predispose the offender to recidivism, some assessment of factors that may perpetuate his level of risk. He undertook various actuarial assessments including use of the Static 99 test. 69. The synthesis of all Dr Allnutt's assessments of the offender includes that: "He falls into a group of sex offenders who would be regarded as having a low risk of sexual recidivism compared with other sex offenders. This is predominately because he would be regarded as an incest sexual offender because his victims were effectively related being step-granddaughters." Incest sex offenders have a lower rate of recidivism on Dr Allnutt's assessment than other sex offender groups. 1. At the time that he assessed the offender in late 2016, Dr Allnutt formed the view that the offender was in what he described as a pre- contemplative phase of rehabilitation. His treatment plan for the offender suggested a referral to a sex offender rehabilitation program and that once the offender had moved into a contemplative phase rehabilitation, that is accepting that he has a sexual vulnerability that needs to be addressed, namely paedophilia, that he should engage in a sex offender rehabilitation program. It is also suggested that he consult with the forensic psychiatrist in relation to the appropriateness of taking sex drive suppressant medication. 2. Ms White along with Dr Allnutt records a history consistent with the offender expressing his remorse. She did not find any neuropsychological deficits in the offender. Relevantly the Prosecution tendered in the sentence proceedings a presentence report prepared by Theresa Ross of the City Community Corrections Office which annexed a helpful assessment from Laura O'Neil who is a psychologist within the correctional system. Having also made an assessment under the Static 99 test Ms O'Neil formed a view that the offender particularly taking into account his age at being older than 60 years and in fact now in his late sixties, that his risk of sexual offending fell within the low range relative to other sexual offenders. 3. Ms Ross in the presentence report indicates she made that same assessment although that seems to have largely been based on Ms O'Neil's assessment. Ultimately in terms of the offender's prospects for rehabilitation, I assess them to be relatively high provided that the offender make some full acknowledgement of the difficulties that he has in relation to paedophilia. I accept the assessments of the three personnel that I have referred to that he is at low risk of reoffending and that is one of the reasons that I consider that he has reasonably good prospects of rehabilitation. 4. In relation to the issue of remorse, apart from that which derives from the offender having pleaded guilty, there is some evidence of remorse by the offender in terms of him volunteering details of particular offending that had not previously been disclosed by CD. In the psychiatric assessments of Dr Allnutt and the neuropsychological assessment of Ms White, there are expressions of remorse. Of course less weight can be given to those histories because the offender has not given evidence before me. 5. It is the case that when the offender made admissions in relation to CD, he made some expressions of remorse for harming her and some acknowledgement of the harm that he had likely done to her. The extent to which I place any reliance on that material as an early expression of remorse, is somewhat undercut by (a) the material that suggests that the offender in part blames CD's character and behaviour for his interactions with her and (b) his failure to disclose that he had been offending against DD at the time. On balance I am prepared to accept that he his remorseful for his behaviour and has some limited insight in relation to the effect it had on these two vulnerable young girls. 6. I have taken into account the pleas of guilty in relation to counts 1 and 4, which were entered on the day that the matters were first listed for trial. However the Crown concede that the fact that there would be pleas had been fore-shadowed to the Crown at least a week before the matter was first listed for trial and thus the young victims understood from about that time that they would not need to give evidence. 7. Notwithstanding the point within the process at which the pleas were entered, the pleas were not without utilitarian value. Apart from saving the resources required for a trial and the certainty of result occasioned by the offender accepting his responsibility for the matters, the pleas meant that the two victims, whom are still at very tender years, did not have to go through the ordeal of giving evidence. 8. I have determined that the sentences that would have otherwise been appropriate in relation to the sexual offending, will be discounted by some amount between ten and fifteen per cent, because of that utilitarian value in line with the authorities. I have taken into account that the plea of guilty in relation to the firearms matter was entered in the Local Court. In line with the submissions of both parties I have reduced the penalty that would otherwise be appropriate in relation to the firearms matter by 25%. All of the discounts as I have indicated are for the utilitarian values of the plea to the criminal justice system and for indicating an acceptance of responsibility and a willingness to facilitate the course of justice. 9. I have carefully considered all the purposes of punishment as set out in s 3A of the Crimes (Sentencing Procedure) Act 1986 (NSW). I have also had regard to the test at s 5 of the Crimes (Sentencing Procedure) Act 1986 (NSW), that is, is there any proper punishment short of full‑time imprisonment that could be imposed? This was obvious from the submissions of both parties but the offences are of such objective gravity that custodial sentences, and lengthy ones at that, are the only appropriate penalties. Apart from count 1, all the other matters of sexual nature are aggravated by the offender's breach of trust. Additionally I extract what Sheller JA, with whom the balance of the Court agreed, in R v BJW [2000] NSWCCA 60, [20] – [21] which is very relevant here. "The maximum penalties that the legislature has set for such offences reflect community abhorrence of and concern about sexual abuse of children, general deterrence is of great importance in sentencing such offenders, and especially so when the offender is in a breach of trust to the victim". 1. His Honour went on to extract a quote from the case of R v Hudson (unreported) Court of Criminal Appeal 30.7.98 in which the Court said: "Recognition is given to the fact that children in a family situation are virtually helpless against sexual attack from the male parent, and that children have a right to be protection from sexual molestation within the family, and that this can only be achieved by the Courts imposing sentences of a salutary nature." 1. Then at [21] his Honour said, "Similarly a child aged 13 years or younger is virtually helpless in the family unit when sexually abused by a step-parent." 1. Each of those comments are apposite here even though the premises involved was not in the victims' principal family home but were in a home where they ought have been entitled to feel safe and secure being cared for by their maternal step-grandfather when visiting there. 2. Mr Marr, in his helpful submissions saying all he possibly could for the offender invited my attention also to [24] of the same authority in which the Court extracted some material from another authority in relation to the health of offenders, and at [24] quoted as follows from R v Smith (1987) 44 SASR 587: "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts however must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health." 1. Then a bit further down, quoting a different authority called R v L (unreported) Court of Criminal Appeal 17.6 96: "Where illness is seen to be relevant to the determination of sentence its weight must be assessed in light of all the circumstances of the case. Obviously one of those circumstances will be the seriousness of the offence. In some cases it might lead to the reduction of a sentence otherwise appropriate." 1. I have already articulated the view that I have of the objective seriousness of the offences. There is material in the custodial records that shows that, although the offender is being relatively well managed in custody in terms of his various medical problems, he walks with the assistance of a frame. There are undoubtedly difficulties with his mobility which I have observed first hand watching him come into court on another occasion. There is also material consistent with him having had one fall in custody, and one assault of him by another inmate which must have been very difficult to resist in circumstances where he was so immobile. 2. Whist I intend to take into account the offender's age, his lack of record, his remorse, his prospects of rehabilitation, as part of the general sentencing balancing exercise, balancing the various matters that need to be balanced in exercises of this kind, I intend to take into account his parlous health together with the fact that this is his first time in custody, in making a finding of special circumstances. I was invited to do that by Mr Marr and the Crown did not demur from the notion that this was a proper case to find special circumstances. I do find special circumstances on the basis as I have articulated, that it is the offender's first time in custody, and secondly his parlous health. I do not intend to take into account his health difficulties in any other fashion. So it should not be seen that I am involved in the exercise of double counting in that regard. 3. I have determined to deal with these matters by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1986 (NSW). Necessarily I have had regard to principles of totality in determining the indicative sentences and the final aggregate sentence. 4. There are two individual counts each in relation to both of the victims CD and DD, and each involve separate episodes of offending. In relation to counts 1 and 4 the indicative sentences are necessarily longer than they otherwise would have been, taking into account the other serious offences, once again separate offending, that is disclosed on the Form 1. 5. The offence pursuant to the firearms matter together with matters on the Form 1 represent a further discrete class of offending. It is uncontroversial that any aggregate sentence should commence from 9 October 2014, which is the date that the offender first went into custody in relation to these matters. 6. Courts need to recognise with the provision of standard non-parole periods that sentences will be greater than they once might have been before standard non-parole periods had any application. 7. In relation to all of the matters I have had regard to the maximum penalty as a benchmark, or guide post, and I have also had regard, where relevant, to the standard non-parole period. The reasons that I have determined not to impose a standard non-parole period include: first, there have been pleas of guilty, and second, where relevant, the offending is less than the mid-range. 8. When I come to impose the final aggregate sentence I have regard to the necessity for the non-parole period to represent the minimum period that the offender should be in custody, having regard to all the elements of punishment including the objective seriousness of the offence. The importance in a case like this of both specific and general deterrence, denunciation and the subjective offences of the offender, to which I refer to/consider R v M A [2004] NSWCCA 92 and R v Nguyen and Pham [2010] NSWCCA 238 per Johnson J at [134]. In the circumstances I do not require you to stand while I announce the sentences. 9. I am about to announce the indicative sentences. These are sentences to which the various discounts that I have described in terms of the utilitarian basis have been applied. 10. In relation to count 1 there is an indicative non-parole period of eight years and a total term of 12 years. 11. In relation to count 2 there is an indicative sentence of a fixed term of four years. 12. In relation to count 3 there is an indicative non-parole period of four years and a total term of six years. 13. In relation to count 4 there is an indicative non-parole period of eight years and a total term of 12 years. 14. For the firearms offence, pursuant to s 51D of the Firearms Act 1996 (NSW), there is an indicative non-parole period of three years and a total term of four years and six months. 15. I ought to say that in looking at principles of totality I was invited by Mr Marr to make all sentences in relation to CD totally concurrent one with the other, and both sentences in relation to DD wholly concurrent one with the other. I do not think that is a principled approach and I determine in terms of the notional accumulation that there would be some accumulation between each of those offences, although more modest in relation to counts 2, 3 and the firearms offence. 16. BKA you are convicted in relation to all counts, that is the four counts on the indictment and the firearms matter. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1986 (NSW) I impose an aggregate sentence in relation to each of those matters. 17. The non-parole period will be ten years and six months which will commence on 9 October 2014 and expires on 8 April 2025, which is the first date on which you will be entitled to be considered for release to parole. 18. The total sentence will be 15 years and that sentence commences on 9 October 2014 and expires on 8 October 2029. 19. BKA, I am obliged to explain the sentence to you. You are well represented and I do not want to go into too much detail. You have been sentenced to a period of imprisonment of 15 years. The non-parole period is ten and a half years. The sentence commenced as at 9 October 2014. 20. The date that I announced at the end of the non-parole period is the date that you re first entitled to be considered for release to parole. It is a matter for the parole authorities in terms of your progress towards rehabilitation, but can I suggest to you, given what Dr Allnutt in particular had to say about the way forward for you in terms of rehabilitation, that you ought to be agitating within the system to be admitted to some sex offender rehabilitation program. 21. I understand that the authorities tend to do that later in a sentence rather than earlier for whatever reason, but I will be directing that a copy of Dr Allnutt's report and Ms White's report travel with the warrant back to the gaol to assist the authorities in terms of the way forward for you. ********** 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: 29 May 2019