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District Court 27 August 2018

R v MM (No 2)

[2018] NSWDC 528

Sexual offences
CRIMINAL LAW TRIAL JUDGE ALONE CHILD SEXUAL OFFENCES PERSISTENT SEXUAL ABUSE OF A CHILD SIX COMPLAINANTS AND MULTIPLE CHARGES

Citation: R v MM (No 2) [2018] NSWDC 528
Court: District Court of New South Wales
Date: 27 August 2018
Judge: Sutherland DCJ SC

Background

The offender, a 71-year-old man, was the patriarch of an extended family whose sexual offending against his grandchildren and step-grandchildren spanned approximately 11 to 12 years. He faced 77 counts in a judge-alone trial heard at Wollongong in early 2018, with verdicts delivered in Sydney in March 2018. These sentencing remarks followed a sentence hearing held in June 2018 and were delivered from Penrith District Court.

The six victims were children within the offender's own family. Four were granddaughters, one was a grandson, and one was a further step-grandchild. The offending included repeated acts of sexual intercourse, fellatio, and cunnilingus; grooming and procuring children for unlawful sexual activity; production, dissemination, and possession of child abuse material; supply of drugs including prescription opioids, cannabis, and alcohol to victims; and blackmail of victims to maintain their silence.

The offender recorded much of the abuse using cameras set up in the attic of his home. Police recovered approximately 22 minutes of high-definition digital recordings, which gave rise to 34 counts in the indictment alone. An earlier complaint by one victim to her junior school in 2009, which led to mandatory reporting and a police interview, had not resulted in charges at that time, and the offending against other victims continued after that point.

  • Whether the offender was guilty on each of the 77 counts, spanning offences under the Crimes Act 1900 and the Drug Misuse and Trafficking Act 1985 (resolved at trial; the sentencing remarks address how those verdicts translate into sentence)
  • What sentences were appropriate across 73 counts of conviction, including counts for persistent sexual abuse, sexual intercourse with children, production and possession of child abuse material, grooming, indecent assault, and drug supply
  • How to assess the objective gravity of each offence relative to the statutory maximum and any standard non-parole period (SNPP) prescribed
  • How to apply the principles of totality and accumulation across a very large number of counts involving multiple victims over an extended period

Decision

Sutherland DCJ SC convicted the offender on 73 of the 77 counts following the judge-alone trial. The sentencing remarks detail the court's assessment of each count individually, characterising the objective seriousness of each offence by reference to its statutory maximum penalty and, where applicable, its SNPP. The overall course of offending was described as dissolute and depraved, with the offender having systematically exploited positions of familial trust across more than a decade.

The court assessed individual sentences ranging from one month (for a drug supply count placed substantially below mid-range) up to 10 years (for counts of sexual intercourse with a child assessed at the high end of the spectrum approaching the worst category). Several counts carrying maximum penalties of 12 to 15 years attracted non-parole periods of 7 to 7.5 years. Counts relating to child abuse material production and possession generally attracted sentences of between 1 and 6 years, assessed at varying points within the mid-range.

The gravity of the offending against Victim 1 was treated as particularly serious. The abuse began when she was approximately four or five years of age, involved penile penetration over a period of roughly six years, was extensively filmed, and included the supply of prescription opioids, alcohol, and cannabis. The offender also involved Victim 1's younger brother in acts of intercourse with his own sister, providing Viagra to the boy when he was approximately nine or ten years old.

The court had regard to victim impact statements from multiple victims, expert reports tendered by the Crown, and a psychiatric report tendered on behalf of the offender. The offender did not give evidence at the sentencing hearing, having given evidence during the trial itself.

Orders Made

• Count 52: 18 years imprisonment with non-parole period of 13 years 6 months
• Count 53: 18 years imprisonment with non-parole period of 13 years 6 months
• Count 54: 18 years imprisonment with non-parole period of 13 years 6 months
• Count 55: 18 years imprisonment with non-parole period of 13 years 6 months
• Count 56: 14 years imprisonment with non-parole period of 10 years
• Count 57: 14 years imprisonment with non-parole period of 10 years
• Count 58: 6 years imprisonment
• Count 59: 6 years imprisonment
• Count 60: 9 years imprisonment with non-parole period of 7 years
• Count 61: 9 years imprisonment with non-parole period of 7 years
• Count 62: 10 years imprisonment with non-parole period of 7 years 6 months
• Count 63: 3 years imprisonment
• Count 64: 4 years imprisonment
• Count 65: 4 years imprisonment
• Count 66: 9 years imprisonment with standard non-parole period of 7 years
• Count 67: 4 years imprisonment with standard non-parole period of 3 years
• Count 68: 1 month imprisonment
• Count 69: 3 months imprisonment
• Count 70: 12 months imprisonment
• Count 71: 12 months imprisonment
• Count 72: 12 months imprisonment
• Count 73: 12 months imprisonment
• Count 74: 12 months imprisonment
• Count 75: 12 months imprisonment
• Count 76: 12 months imprisonment
• Count 77: 12 months imprisonment

Key Takeaways

  • The District Court sentenced an offender on 73 counts spanning sexual intercourse with children, persistent sexual abuse, grooming, production and possession of child abuse material, and drug supply, following a judge-alone trial in which verdicts of guilty were returned on those counts.
  • Objective seriousness was assessed count by count, with the most serious individual sentences reaching 10 years' imprisonment and non-parole periods of up to 7.5 years for the gravest sexual offences.
  • Filming of offending by an offender who set up purpose-built recording equipment in his home was a significant aggravating feature, generating dozens of additional counts relating to child abuse material production and possession.
  • Under the sentencing framework applied, the court assessed each count individually against the statutory maximum and any SNPP before considering totality principles across the large indictment.
  • The decision illustrates the complexity of sentencing proceedings involving multiple victims, extended time periods, and a very large number of counts, requiring detailed analysis of each offence before any aggregate or cumulative sentence can be constructed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 61O(2A), 66C(4), 66EB(2), 66EB(3), 91G(2)(a), 91H(2), 578A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(1A)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- R v MM [2018] NSWDC 181 (the primary judgment on verdict)
- BR v R [2015] NSWCCA 255
- Bravo v R [2015] NSWCCA 302
- BT v The Queen [2010] NSWCCA 267
- FD v R [2013] NSWCCA 139
- Franklin v R [2016] NSWCCA 319
- GAT v R [2007] NSWCCA 208
- GSH v R; R v GSH [2009] NSWCCA 214
- Hitchen v R [2010] NSWCCA 77
- JL v R [2014] NSWCCA 130
- Josefski v The Queen [2010] NSWCCA 41
- Mills v R [2017] NSWCCA 87
- MRW v R [2011] NSWCCA 260
- Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104
- PH v The Queen [2009] NSWCCA 161
- R v BJW [2000] NSWCCA 60
- R v Fisher (1989) 40 A Crim R 442
- R v Hutchinson [2018] NSWCCA 152

Note: Publication restrictions apply under s 578A of the Crimes Act 1900 (NSW). The identities of the victims, the offender, his wife, and family members are all subject to suppression. Readers using material from this judgment should satisfy themselves that any intended use complies with those restrictions.