District Court New South Wales Medium Neutral Citation: R v Gipps (a pseudonym) [2020] NSWDC 24 Hearing dates: 7 February 2020 Date of orders: 06 March 2020 Decision date: 06 March 2020 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 20 years with a non parole period of 15 years. Catchwords: CRIME - SENTENCE - sexual intercourse with a person under 10 years of age - indecent assault of a person under 16 years of age - aggravated sexual assault of a person under 16 years of age. Legislation Cited: Crimes Act 1900 (NSW), ss 66A(1), 61M(2), and 61J(1). Cases Cited: Bugmy v R [2013] 249 CLR 571 Category: Sentence Parties: Regina (Crown) Mr Gipps (a pseudonym) (Offender) Representation: Mr Kotsis (Crown Prosecutor) Mr Terracini SC - with Mr Kondich (for the offender) File Number(s): 2017/381748 Publication restriction: Non publication order of the name of the offender and the victim and of any other thing that might identify either of them directly or indirectly. Judgment 1. To the extent necessary, I confirm and continue the non-publication order previously made of the name of the offender, the victim of the offender's criminal conduct, and of any other thing that might identify either of them, directly or indirectly. 2. Mr Gipps (a pseudonym), on 31 July 2019 you were arraigned before a jury panel in waiting on an indictment which contained 17 Counts. 3. Upon your arraignment, you pleaded not guilty to each Count. 4. A jury was then empanelled. 5. On 9 August 2019, that jury found you guilty of each Count. 6. Following the jury's verdicts your bail was revoked. 7. A sentence hearing was then appointment for 4 October 2019. However, on that date, and on your application, that sentence hearing date was vacated and a new sentence hearing date was fixed for 7 February 2020. 8. On 7 February 2020, the sentence hearing was conducted and I reserved my decision until today. 9. Seven of the offences were offences of sexual intercourse with a person under 10 years of age. These were Counts 1, 6, 7, 8, 9, 10 and 11 on the indictment. 10. Each of these offences involves a contravention of s 66 A (1) of the Crimes Act. The maximum penalty for each offence is 25 years imprisonment and there is a standard non-parole period of 15 years imprisonment. 11. Four of the offences were the offences of indecent assault of a person under 16 years of age. These were Counts 2, 3, 4 and 5 on the indictment. 12. Each of these offences involves a contravention of s 61 M (2) of the Crimes Act. The maximum penalty for each offence is 10 years imprisonment. There is a standard non-parole period of 8 years imprisonment. 13. The remaining six offences were offences of aggravated sexual assault of a person being under the age of 16 years. These were counts 12, 13, 14, 15, 16 and 17 on the indictment. 14. Each of these offences involve a contravention of s 61 J (1) of the Crimes Act. The maximum penalty for each offence is 20 years imprisonment. There is a standard non-parole period of 10 years imprisonment. 15. Because you were found guilty by the jury following a trial, it is necessary for me to make findings of fact, beyond reasonable doubt, consistent with the verdicts of the jury. 16. I am satisfied the following facts have been proved beyond reasonable doubt for that purpose. 17. The victim in this matter was born in June 2002. 18. In about 2008, because she was encountering significant difficulties with her own family, the victim went to live with her mother's sister and her husband in Queensland. I shall refer to that man throughout these remarks as "the Queensland uncle". 19. Whilst the victim was living in Queensland, and whilst she was between 5 and a half and 7 years old, the Queensland uncle sexually assaulted her on a number of occasions. 20. The victim complained about the Queensland uncle's criminal misconduct in June 2009. 21. As a result of those complaints, and around about that time, the victim moved to the Southern Highlands of New South Wales to live with another aunt. That aunt was the sister of the victim's father – and she was your wife, with whom you were living with your two sons. You were aware of the victim's significant problems with her mother and of the complaints against the Queensland uncle and you therefore knew that the victim was an especially vulnerable child. 22. On a day between 1 January 2011 and 31 December 2011 (when the victim was between 8 years 6 months and 9 years 6 months of age and in Year 4 at school), you and she were cleaning out the garage. One of your young sons was nearby gurneying some chairs and your wife was at work. The victim bent over to pick something up and you touched her buttocks with your hand. When she stood up and turned around, your pants and underwear were around your knees. The victim said, "What are you doing? Don't touch me." She saw that your penis was not erect. You took an object from her hands and said, "Get on your knees." She replied, "No. Why?" to which you replied, "Just get on your knees." You grabbed the victim's shoulders and pushed her down onto her knees. She said, "Why am I on my knees?" 23. You moved your penis towards her face and rubbed it on her lips and face. She said, "Stop it" and tried to push you away. As the victim was asking what you were doing, you put your penis into her mouth with your hand behind her head. You held your penis inside her mouth and then started slowly thrusting it in and out. You stopped and pulled your pants back up and went back to what you were doing. 24. It is these facts which constitute Count 1, being an offence of sexual intercourse with a person under 10 years. 25. About 3 to 4 weeks later, when the victim was still between 8 years 6 months and 9 years 6 months of age, the victim went with you to the local shops to get bread and milk. On the journey you drove your motor vehicle to an isolated spot. The victim asked where you were going and you responded, "Never you mind". You turned onto a dirt road and parked the car. The victim asked what you were doing and why the car was locked. You rubbed and touched her chest, including her nipples, underneath her pyjamas. 26. You then unzipped your pants, grabbed the victim's hand and put it on your penis. You moved her hand up and down and your penis became erect. You moved her hand so as to touch your testicles and then back up to your penis. The victim said she needed to get home because she had school the next day. You pulled your pants up and drove home. 27. It is these facts which constitute Count 2, being an offence of indecent assault of a person under 16 years. 28. On another day between 1 January 2011 and 31 December 2011, when the victim again was between 8 years 6 months and 9 years 6 months of age, the victim was at home with your wife, you, and your two sons. Your wife was in the lounge room watching television with your sons. The victim went to her bedroom at the other end of the house and lay on her bed. You walked in and said, "Do you want to do it?" She responded, "No". I pause to observe that the context in which that question was answered by her was that the offences of which you have been convicted were not isolated incidents. Her evidence, which I accept beyond reasonable doubt, was that there were many more incidents of criminal misconduct by you against her. However, I hasten to add that you are not to be punished today for these uncharged acts. They do, however, provide context. Returning to the narrative, you said "Too bad". You grabbed her hand and put it on your penis, on the outside of your clothes, for about 30 seconds. You then put her hand down your pants and made her squeeze your penis and touch your testicles for about two minutes. Your wife called out to you (she, of course, not knowing what you were doing) and you left the room. 29. It is these facts which constitute Count 3, being an offence of indecent assault of a person under 16 years. 30. One night between 14 June 2011 and 31 December 2011 (when the victim as between 9 years and 9 years 6 months of age), she was asleep in her bedroom. She woke up to you breathing and softly saying her name. You were sitting at the edge of her bed, touching her leg and asking if she was okay. She responded, "Yeah, what do you want?" You touched her vagina on top of the doona for about a minute. 31. It is these facts which constitute Count 4, being an offence of indecent assault of a person under 16 years. 32. On a day between 14 June 2011 and 31 December 2011, when the victim was between 9 years and 9 years 6 months of age, the victim was at home with you and one of your young sons. You told the victim to go into the master bedroom, after which you closed and locked the door. The victim said, "Is this what I think it is?" to which you responded, "What do you think it is?" She told you not to touch her and that she wanted it to stop. You told her it was not going to stop for a while. You put your hand down her top and touched her breast on top of her sports bra. One of your young sons called out to the victim, so she unlocked the door and left the room. 33. It is these facts which constitute Count 5, being an offence of indecent assault of a person under 16 years. 34. One day in mid-December 2011, you and the victim were home alone. The victim was helping you wrap Christmas presents. You asked the victim to go into your bedroom and get some more of the presents to wrap. You followed her into the bedroom, locked the door and closed the blinds. The victim said, "Oh my God, go away. Just leave me alone". You said, "You can't tell anyone because no one will believe you… everyone just calls you a liar". 35. The victim tried to hide in the walk-in wardrobe, and you called out her name and said she was not getting out of this. She came out and you grabbed her and took her into the bathroom where you got some baby oil from underneath the sink. You took her to the bed, took off your pants and said, "We're going to try something else today". The victim said she did not want to and begged you not to. 36. You pulled her top up so it was around her neck. You said, "How would you feel if we put it up your arse?" She said she did not want it up there or up her vagina either. You rubbed her vagina with your hand on top of her pants and pushed her into the bed. You pulled her towards the edge, so that her legs hung off the end of the bed. You took off her pants and underwear, got down on your knees and licked her vagina. 37. It is these facts which constitute Count 6, being an offence of sexual intercourse with a person under 10 years. 38. You then inserted one or two fingers into her vagina and rubbed inside. 39. It is these facts which constitute Count 7, being an offence of sexual intercourse with a person under 10 years. 40. You then asked if it felt nice. She said no and tried to pull away from you. You told her that when she got a boyfriend, she would like it. 41. Your demeanour then changed and your voice became angry. You told her to turn around and she complied. You squirted baby oil into her buttocks and rubbed it in. You tried to put your penis into her anus but only got the tip of the penis in before she yelled and started crying because it hurt. 42. It is these facts which constitute Count 8, being an offence of sexual intercourse with a person under 10 years. 43. The victim kicked you and told you to stop. 44. You said, "Okay, I won't try that", and you touched her vagina. You put your penis into her vagina for one or two minutes and ejaculated inside her. 45. It is these facts which constitute Count 9, being an offence of sexual intercourse with a person under 10 years. 46. You asked her if it felt nice and told her to go and clean up. 47. You then went out to get some lunch, and when you returned, the victim asked what the "white stuff" coming out of her was. You told her that you exploded and that it felt nice. The victim asked if she could get pregnant and you said you did not know but that she should just go and wash her vagina. I pause to observe that notwithstanding her age there was a real risk of pregnancy to that young child; and your dismissive attitude to her legitimate fears was especially disgraceful. 48. One night in about February 2012, all members of the family were at home watching television. The victim went to her room and you came in and said you needed to show her something. She followed you into your bedroom where you pulled out a plastic square packet. You said, "Are we going to do it?" The victim said she did not want to do it anymore and she wanted you to stop forcing her. It would seem on the evidence that nothing eventuated on that occasion. 49. However, two weeks later, about 6 March 2012, when the victim was between 9 years 7 months and 9 years 9 months, you took the victim to the bedroom and locked the door. Your son was watching television at the other end of the house. You pulled out a square packet and said you were going to use it. She asked what it was, and you said it protected your penis. You told her to undress and she refused. You said she was going to do it or she would get disciplined. She undressed and you made her take off your pants. 50. You then opened the packet and told her to put it on you. When she did not know how, you put it on yourself and made her perform fellatio on you. 51. It is these facts which constitute Count 10, being an offence of sexual intercourse with a person under 10 years. 52. You then picked the victim up and put her on her back on the bed. You inserted your penis into her vagina and thrust really fast for about one or two minutes until you ejaculated. 53. It is these facts which constitute Count 11, being an offence of sexual intercourse with a person under 10 years. 54. The next charged offending conduct occurred when the victim was in Year 4, 5 or 6 at school (i.e. 2011, 2012 or 2013). The victim was somewhere between 8 years 6 months and 11 years 6 months of age. On this occasion, the victim went with you when you took one of your young sons to soccer practice. Once there, the victim was kicking a soccer ball around by herself for about half an hour while you waited in the car. She then got back into the car to wait for your son to finish training. At this time, you suggested that you and she drive somewhere. You locked the doors and drove around to a nearby lake. You parked the car and you took her for a walk into the bushes. 55. After walking for about 3 or 4 minutes, you stopped, and the victim asked what you were doing. You then pulled down your pants and pushed the victim's head towards your penis with one hand. She kept her mouth closed and you pushed your penis into her face. When your penis became erect, you forced it into her mouth and pushed her head to make her perform fellatio for about 2 minutes until you ejaculated. 56. It is these facts which constitute Count 12, being an offence of aggravated sexual assault – the circumstance of aggravation - for this offence and the other offences I shall soon refer to – being her age. 57. You then both walked back to the car. You drove to the soccer field. The victim said, "Don't you think this is a bit weird, we just went into the bush for, like, 5 seconds and then came back out together?" You told her to pretend like nothing happened. When your son finished training, you all went home. 58. On another occasion before you moved out of the matrimonial home, you went into the victim's bedroom and closed the door. You said that you both needed to be quiet because your wife was in the loungeroom. The victim told you to stop forcing her to do it, and you replied that all the other girls like it. What you meant by that expression was not revealed in the evidence; and I do not speculate about it adversely to you. You pulled your pants down, took the victim's hand and rubbed it on your penis. You took her shirt off and put her on the floor on her hands and knees. You licked your fingers and rubbed it on her anus. You then put the tip of your penis into her anus causing her pain. 59. She yelled and told you to stop. You pulled your pants up and walked out. 60. It is these facts which constitute Count 13, being an offence of aggravated sexual assault. 61. One day between 1 March 2014 and 31 October 2014, and after you had moved back into the matrimonial home, the victim was aged between 11 years 8 months and 12 years 4 months. You and the victim were in a bedroom. It was daylight but the curtains were closed, so the room had limited light. 62. You pulled the victim's pants down, pulled her skirt up to her neck, and held her pelvis down on the bed so she could not move. You put her legs in the air and she tried to kick you away but could not. You inserted your penis into her vagina while you held her down with one hand and put your other hand over her mouth. Your penis went in about half-way and you held it there. You then thrust it in and out for about 4 minutes until you ejaculated onto her body. 63. The victim laid on the bed. You brought over some tissues and tried to wipe her stomach and chest. She wiped it off herself and then went to her bedroom and cried. 64. It is these facts which constitute Count 14, being an offence of aggravated sexual assault. 65. On an occasion between 1 March 2014 and 31 December 2014, when the victim was between 11 years 8 months and 12 years 6 months of age, the victim was alone inside the house with you. One of your sons was outside in the paddock kicking a ball. 66. You pulled your pants down and pushed her down onto her knees and forced her to perform fellatio on you for about 30 seconds to a minute. 67. It is these facts which constitute Count 15, being an offence of aggravated sexual assault. 68. You then told her to go over to the bed and she said, "No", so you yelled at her. She started crying and walked over to the bed. You told her to pull her pants down but she refused. You yelled again at her, so she pulled her pants down. You pushed her onto the bed on her hands and knees so her buttocks were in the air facing towards you. 69. You touched her buttocks with your hands and felt around her vagina with your penis. You inserted your penis all the way into her vagina for about 3 minutes. 70. It is these facts which constitute Count 16, being an offence of aggravated sexual assault. 71. You then licked the victim's vagina for about 30 seconds to a minute. 72. It is that fact which constitutes Count 17, being an offence of aggravated sexual assault. 73. You then inserted your penis back into her vagina for about a minute. During the intercourse, the victim was crying and told you to stop several times. You stopped and ran into the bathroom. The victim got dressed and hid under the bed because the door was locked. This act was not the subject of a discrete Count on the indictment. I shall treat it as part of the offence captured by Count 16. 74. In all of the offences there were differing degrees and acts of coercion – some of which I have already specifically noted. But perhaps the most reprehensible one was when you said something to this especially vulnerable child to the effect that, if she did not comply or if she told anyone, she would be taken away or, as she understood it, kidnapped (see MFI5:Q/A500). 75. At the commencement of these remarks, I referred to the serious criminal misconduct of the Queensland uncle. 76. He was committed for trial in relation to that misconduct on 20 April 2011. 77. Following a trial, he was initially convicted of four Counts of indecent treatment of a child under the age of 12 and seven other Counts, including Counts of rape. 78. However, the Queensland Court of Appeal subsequently allowed an appeal and ordered a new trial. 79. Ultimately, the Queensland uncle pleaded guilty to four Counts of indecent treatment of a child under 12 and it would seem that the Crown accepted those pleas in full satisfaction. He was sentenced on 31 March 2014. 80. You committed Counts 1 to 12 inclusive on the victim during the period between that Queensland uncle's committal on 20 April 2011 and the first trial. 81. You committed Counts 13 to 17 after that uncle's retrial, the pleas of guilty and sentencing. 82. Your brazenness in committing your offences in these circumstances is breath taking and shocking. It no doubt reflects your confidence in your control, through fear, of this child. 83. It is necessary for me to make a finding as to the objective seriousness of each offence for an offence of its kind. 84. In my opinion, the following Counts are above the mid-range: 8, 9, 13, 14 and 16; the following are at the mid-range: 1, 6, 7, 10, 11, 12, 15 and 17; and the balance slightly below the mid-range. 85. I have made these express findings as to each of the offences as I am required to do. However, it would be totally unrealistic, in assessing the totality of your offending conduct, to look at any one of the 17 specific offences in isolation. Each was but one part of an horrific ordeal, over a significant period of time, and in which you inflicted your perverse lust on this especially vulnerable child. Looked at in totality, your criminality was of a most serious kind. 86. Each offence is additionally aggravated because it was committed in the home of the victim. 87. Technically, each offence is additionally aggravated by reason of your gross abuse of trust. However, I think each of these two additionally aggravating factors are, in truth, both sides of the same coin. 88. There is, however, a further and substantial additional aggravating feature, and that is this victim, quite apart from her age, was especially vulnerable by reason of what she had been subjected to at the hands of the Queensland uncle – to your knowledge. 89. At the sentence hearing, the victim read a victim impact statement. It is clear from the contents of that statement and from observing the victim as she read it in Court that she has suffered greatly at your hands. However, the emotional harm which she has suffered, although significant and confronting, was of a kind that might ordinarily be expected from such heinous offences as these. Consequently, it does not constitute an additional aggravating factor. 90. You did not give evidence in the sentence hearing. 91. Rather, your subjective circumstances have come before me through a psychologist's report, that of Mr Bradley Jones. 92. The report was tendered without objection and does not contain any controversial material – with one exception to which I shall shortly return. 93. You are now 52 years of age and you are one of three children born to your parents. Your home was life as a child was an unhappy one. You told the psychologist that your father was a violent man who would inflict physical violence on your mother. 94. After your parents divorced, your mother remarried, and you had a reasonably good relationship with your stepfather. 95. Domestic violence was not the only negative feature of your early childhood. 96. You told the psychologist that after your parents divorced, your father's brother, who was living in your home, sexually abused you and one of your sisters. Your childhood was an isolated one and you had few friends. 97. You completed your schooling at Year 10. Your academic standard was probably impeded by the fact that you had Attention Deficit Disorder. 98. It may be accepted that you had a dysfunctional upbringing of the kind considered by the High Court in Bugmy v The Queen (2013) 249 CLR 571. 99. Since leaving school you have worked hard as a truck driver. 100. You have had three serious long-term relationships with adult women. 101. Your relationship with the victim's aunt was your second such relationship. 102. You have now formed a third relationship. You married the lady concerned in 2017 and you have a young child who is presently 2 years of age. 103. You are in good physical health. 104. You do not suffer any long-term effects of your sexual abuse as a child because of counselling that you have already received. It provides no explanation for your offending behaviour. 105. You have a relatively good criminal record and are entitled to be treated as, in effect, a first offender. However, for offences against children, such a consideration is of reduced significance. 106. I earlier referred to the fact that the psychologist's report did not contain any controversial material. In this regard, Mr Jones wrote at paragraph 35: "With respect personality functioning, Mr Gipps has a strong need to pursue unusually challenging endeavours and evince goal-directed behaviours which most others would find unrealistic. He is frequently able to coax others into doing things they would not otherwise do and, often, he is successful in exciting their own wish fulfilment in the process." 1. I have wondered whether this observation is in any way connected with your offending behaviour. However, I need not dwell on that. 2. I do note, however, that Mr Jones concluded that you were at a low to moderate risk of engaging in sexually violent behaviour. 3. But one thing Mr Jones does not explain is why you offended against a child – and this child in particular. 4. You have not expressed remorse for your truly wicked offending against this very vulnerable victim. You were, of course, entitled to defend yourself at a trial and you are not to be punished for exercising your right to a trial. Since your conviction, however, you have not expressed any remorse. 5. By having regard to your lack of remorse, the opinion of Mr Jones as to your risk of reoffending, the absence of any explanation as to why you offended, your limited criminal history, your good work history, and your currently good marital status, I have concluded that your prospects for rehabilitation are guarded. 6. In sentencing offenders who sexually abuse children Mr Gipps, the paramount consideration must be to fix a sentence that will deter others from doing what you have done. 7. In your case, there is the additional requirement of fixing a sentence that will deter you from such conduct in the future as well. 8. And, of course, the sentence must be one which encourages your rehabilitation. 9. No sentence for any individual offence other than one of fulltime imprisonment is appropriate. 10. Notwithstanding that this will be your first time in custody, I decline to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. 11. I intend imposing an aggregate sentence which must ultimately have regard to totality. 12. Consequently, it is necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence. 13. For Count 1, the indicative sentence is imprisonment for 4 years 6 months. The indicative non-parole period is 3 years 4 months. 14. For Counts 2 and 3, the indicative sentences in each case are imprisonment for 4 years. The indicative non-parole period is 3 years. 15. For Counts 4 and 5, the indicative sentences in each case are imprisonment for 3 years 6 months. The indicative non-parole period is 2 years 7 months. 16. For Counts 6, 10 and 17, the indicative sentences in each case are imprisonment for 6 years. The indicative non-parole period is 4 years 6 months. 17. For Counts 7, 15 and 16, the indicative sentences in each case are imprisonment for 7 years. The indicative non-period is 5 years 3 months. 18. For Counts 8, 11, 12 and 14, the indicative sentences in each case are imprisonment for 8 years. The indicative non-parole period is 6 years. 19. For Count 9, the indicative sentence is imprisonment for 10 years. The indicative non-parole period is 7 years 6 months. 20. For Count 13, the indicative sentence is imprisonment for 8 years 6 months. The indicative non-parole period is 6 years 4 months. 21. Mr Gipps, for the 17 offences of which the jury has found you guilty, I sentence you to an aggregate sentence of 20 years imprisonment. 22. I fix a non-parole period of 15 years to date from 9 August 2019 and which will expire on 8 August 2034. 23. I fix a balance of 5 years to date from 9 August 2034 and which will expire on 8 August 2039. 24. You will now go with the officers. ********** 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: 06 March 2020