Featherstone v R

[2008] NSWCCA 71

Reported Decision: 183 A Crim R 540

New South Wales

Court of Criminal Appeal

CITATION:	FEATHERSTONE v R [2008] NSWCCA 71 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14/3/08
JUDGMENT DATE:	23 April 2008
JUDGMENT OF:	Bell JA at 1; Adams J at 80; Latham J at 81
DECISION:	1. Grant leave to appeal; 2. Allow the appeal and quash the sentences imposed in the District Court. In lieu thereof the applicant is sentenced as follows: (i) Count 1 – a fixed term of 11 months’ imprisonment to date from 4 September 2004 and to expire on 3 August 2005; (ii) Count 2 – a fixed term of nine months’ imprisonment to date from 4 September 2004 and to expire on 3 June 2005; (iii) Count 3 – a non-parole period of 14 months to date from 4 August 2005, which will expire on 3 October 2006, with a balance of term of 14 months which will expire on 4 December 2007 – pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 direct the release of the offender on parole at the end of the non-parole period; (iv) Count 4 – a fixed term of 14 months’ imprisonment to date from 4 August 2005 and to expire on 3 October 2006; (v) Count 5 – a non-parole period of 14 months to date from 4 March 2006, which will expire on 3 May 2007, with a balance of term of 14 months imprisonment to expire on 3 July 2008 – pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 direct the release of the offender on parole at the end of the non-parole period; (vi) Count 6 – a fixed term of 14 months’ imprisonment to date from 4 March 2006 and to expire on 3 May 2007; (vii) Count 11 – a non-parole period of 14 months to date from 4 May 2007, which will expire on 3 July 2008, with a balance of term of 14 months which will expire on 3 September 2009 – pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 direct the release of the offender on parole at the end of the non-parole period; (viii) Count 12 – a fixed term of nine months’ imprisonment to date from 4 July 2008 and to expire on 3 April 2009; (ix) Count 7 – a non-parole period of one year and 10 months to date from 4 April 2009 and to expire on 3 February 2011 with a balance of term of one year and 10 months expiring on 4 December 2012; (x) Count 8 - (taking into account the 12 offences on the Form 1) a non-parole period of two years and five months to date from 4 April 2009 and to expire on 3 September 2011 with a balance of term of five years and seven months which will expire on 3 April 2017; (xi) Count 9 – a non-parole period of one year and 10 months to date from 4 April 2009, which will expire on 3 February 2011, with a balance of term of one year and 10 months to expire on 4 December 2012; (xii) Count 10 – a non-parole period of two years to date from 4 April 2009 and to expire on 3 April 2011 with a balance of term of two years to expire on 3 April 2013.
CATCHWORDS:	CRIMINAL LAW – sexual offences - SENTENCING – appeal against severity of sentence – offences occurred prior to introduction of Sentencing Act – sentencing practice at the date of offending constitutes special circumstances – appeal allowed – sentences quashed.
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Parole of Prisoners Act 1966 Probation and Parole Act 1983 Probation and Parole (Serious Offenders) Amendment Act 1987 Sentencing Act 1989 (NSW)
CASES CITED:	AJB v R [2007] NSWCCA 51 Deakin v R (1984) 54 ALJR 765 MJL v R [2007] NSWCCA 261 R v Bamford (unreported), Court of Criminal Appeal, 23 July 1991 R v Davie (unreported), Court of Criminal Appeal, 10 June 1992 R v Eagles (unreported), Court of Criminal Appeal, 16 December 1993 R v Fisk (unreported), Court of Criminal Appeal, 21 July 1998 R v Hill (unreported), Court of Criminal Appeal, 7 July 1992 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 R v Todd [1982] 2 NSWLR 517 R v Way (2004) 60 NSWLR 168
PARTIES:	Garry Maxwell FEATHERSTONE (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/00005208
COUNSEL:	P Boulten SC (Applicant) P Miller (Crown)
SOLICITORS:	William O'Brien Solicitors (Applicant) S Kavanagh (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0458
LOWER COURT JUDICIAL OFFICER:	JX Gibson ADCJ

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/00005208

BELL JA
ADAMS J
LATHAM J

Wednesday 23 April 2008

Garry Maxwell FEATHERSTONE v R

Judgment

1 BELL JA: The applicant, who is aged 58 years, was convicted in 2003 of offences relating to his possession of child pornography. For these offences he was sentenced to an overall term of two years’ imprisonment with a non-parole period of one year to date from 5 September 2003. At the time of his arrest he was employed as a music teacher at a private school for girls. His arrest and subsequent conviction attracted publicity. As the result of this publicity three complainants, MCL, PP and SP, came forward and reported to the police that each had been sexually molested by the applicant as a child. The investigation of these complaints led the police to re-open an inquiry into a complaint made by LS in 1986 that he had been sexually molested by the applicant.

2 The applicant was arrested and charged with offences against MCL, PP, SP and LS on 4 September 2004, which was the day on which he was due to be released on parole. He was refused bail and he has been in custody continuously since 5 September 2003.

3 On 12 July 2006 the applicant pleaded guilty to 12 counts in an indictment; which charged six offences against MCL, between December 1982 and December 1983; four offences against PP, between January 1985 and July 1987; one offence against LS, between 25 March and 10 April 1986 and one offence against SP, between 26 October 1987 and 26 October 1990. The complainants were aged between 11 and 14 years at the date of the offences. The applicant asked the Judge to take into account a further 12 offences on a Form One under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act) in sentencing him for the offence charged in count eight.

4 On 14 November 2006, the applicant was sentenced by JX Gibson ADCJ to sentences to date from 4 September 2004, which in the aggregate amounted to 16 years and 11 months with an effective non-parole period of 12 years and 11 months. The first date on which the applicant will be eligible for consideration of release on parole is 3 August 2017. The last sentence will expire on 3 August 2021.

5 The applicant appeals against the severity of the individual sentences and the aggregate sentence.

6 Each of the counts in the indictment charged an offence under the Crimes Act 1900 (NSW). Some of the offences have since been repealed. A brief description of the offence, the maximum penalty provided for it, the particulars, and the sentence imposed for it are as follows:

Count one
Between 1 December 1982 and 31 December 1983 – indecent assault, s 81, maximum penalty five years’ imprisonment.
The applicant fondled MCL’s penis. MCL was aged 11 – 12 years.
Sentenced to imprisonment for two years and eight months with a non-parole period of two years to date from 4 December 2006.
Count two
Between 1 December 1982 and 31 December 1983
Procure the commission of an act of indecency, s 81A, maximum penalty two years’ imprisonment.
The applicant procured MCL to fondle his (the applicant’s) penis. MCL was aged 11 – 12 years.
Sentenced to 16 months’ imprisonment with a non-parole period of 12 months to date from 4 September 2004.
Count three
Between 1 December 1982 and 31 December 1983
Indecent assault, s 81, maximum penalty five years’ imprisonment.
The applicant sucked MCL’s penis. MCL was aged 11 – 12 years.
Sentenced to three years and four months’ imprisonment with a non-parole period of two years and six months to date from 4 August 2007.
Count four
Between 1 December 1982 and 31 December 1983.
Procure the commission of an act of indecency, s 81A, maximum penalty two years’ imprisonment.
The applicant procured MCL to suck his (the applicant’s) penis. MCL was aged 11 – 12 years.
Sentenced to 21 months’ imprisonment with a non-parole period of 18 months to date from 4 March 2005.
Count five
Between 1 December 1982 and 31 December 1983.
Indecent assault, s 81, maximum penalty five years’ imprisonment.
The applicant sucked MCL’s penis. MCL was aged 11 – 12 years.
Sentenced to three years and four months’ imprisonment with a non-parole period of two years and six months to date from 4 August 2007.
Count six
Between 1 December 1982 and 31 December 1983.
Procure the commission of an act of indecency, s 81A, maximum penalty two years’ imprisonment.
The applicant procured MCL to suck his (the applicant’s) penis. MCL was 11 – 12 years.
Sentenced to 21 months imprisonment with a non-parole period of 18 months to date from 4 March 2006.
Count seven
Between 1 January 1985 and 18 July 1985.
Homosexual intercourse with a male over the age of 10 years and under the age of 18 years, s 78K, maximum penalty 10 years’ imprisonment.
The applicant placed his penis in PP’s mouth. PP was aged 11 years.
Sentenced to four years’ imprisonment with a non-parole period of three years to date from 4 August 2009.
Count eight
Between 1 January 1985 and 18 July 1985.
Homosexual intercourse with male person above the age of 10 and under the age of 18 years, s 78K, maximum penalty 10 years’ imprisonment.
The applicant placed his penis (or part thereof) in PP’s anus. PP was aged 11 years.
The 12 offences on the Form One were taken into account in sentencing the applicant for this offence.
Sentenced eight years’ with a non-parole period of four years to date from 4 August 2013.
Count nine
18 July 1987.
Homosexual intercourse with male person above the age of 10 and under the age of 18 years, s 78K, maximum penalty 10 years’ imprisonment.
The applicant sucked PP’s penis. PP was aged 14 years.
Sentenced to four years with a non-parole period of three years to date from 4 August 2009.
Count ten
18 July 1987.
Homosexual intercourse with male person above the age of 10 years and under the age of 18 years, s 78K, maximum penalty 10 years’ imprisonment.
The applicant placed his penis (or part thereof) in PP’s anus. PP was aged 14 years.
Sentenced to four years with a non-parole period of one year to date from 4 August 2012.
Count eleven
Between 25 March 1986 and 10 April 1986.
Homosexual intercourse with male above the age of ten years and under the age of 18 years, s 78K, maximum penalty 10 years’ imprisonment.
The applicant sucked LS’s penis. LS aged 14 years.
Sentenced to three years and four months’ imprisonment with a non-parole period of two years and six months to date from 4 February 2009.
Count twelve
Between 26 October 1987 and 26 October 1990.
Commit act of gross indecency with male person under the age of 18 years, s 78Q(1), maximum penalty two years’ imprisonment.
The applicant rubbed his penis against SP’s bottom and buttocks. SP was aged 12 – 14 years.
Sentenced to 16 months with a non-parole period of 12 months to date from 4 September 2004.

7 The 12 offences taken into account on the Form One comprised four further sexual offences committed against MCL between 1 December 1982 and 31 December 1983: fondling MCL’s penis, procuring MCL to fondle the applicant’s penis; sucking MCL’s penis and procuring MCL to suck his (the applicant’s) penis. Five offences committed against PP between January 1985 and July 1987: fondling PP’s penis (x 2); rubbing his penis between PP’s legs; attempting penile penetration of PP’s anus; putting his penis inside PP’s mouth. Two offences committed against LS between March and April 1986: rubbing his penis between LS’s buttocks and against LS’s anus.

8 The twelfth offence on the Form One related to the procurement of a woman named Lynne Horman to give a false statement under oath, the making of which amounted to perjury, at committal proceedings which were held in 1986 arising out of the complaint made by LS that the applicant had sexually assaulted him.

The facts

9 A statement of agreed facts was tendered at the sentence hearing. It is convenient to refer to the factual background by reference to the agreed statement.

10 Counts one to six in the indictment (and offences one to four in the Form One) related to MCL.

11 MCL met the applicant at a YMCA camp held in the Christmas school holidays. The applicant was one of the camp leaders. At the end of the camp the applicant told MCL that he could stay with him whenever he wished. MCL’s parents had separated and he was living with his mother and younger brother. Shortly after the camp the applicant spoke by telephone with MCL’s mother telling her that he was a music teacher at the Pittwater Grammar School and that he had been one of MCL’s camp leaders. He offered to take MCL on an outing. Following this MCL visited the applicant at his home. Nothing of a sexual nature occurred on this occasion. MCL had an interest in music and the applicant showed him his grand piano and the two of them watched videos and ate chocolates.

12 The following weekend the applicant collected MCL from his home and took him to a tennis class. That night while the two watched a movie the applicant began to fondle MCL’s penis (count one) and MCL fondled the applicant’s penis (count two). The applicant dropped MCL to his home the following day with a promise of taking him on a further outing.

13 On the next visit the applicant gave MCL a piano lesson. After this they watched videos and mutual fondling took place (the first and second offences on the Form One). The applicant then removed MCL’s pants, asking if he could suck MCL’s penis. The applicant sucked MCL’s penis (count three). MCL sucked the applicant’s penis at the applicant’s request (count four). A short time after this the two had a bath together and mutual fellatio took place (counts five and six).

14 During the visits to the applicant’s home and in the course of telephone calls MCL spoke to the applicant about his distress arising out of his parents’ divorce.

15 After further overnight stays at the applicant’s home, the applicant invited MCL to accompany him on a trip to Katoomba. They stayed together at a motel and mutual fellatio took place (offences three and four on the Form One).

16 The trip to Katoomba was the last occasion of sexual contact that MCL recalled. Soon after this he severed contact with the applicant because he became aware that the conduct was “bad”.

17 Counts seven to 10 in the indictment (and offences five to nine in the Form One) related to PP.

18 When PP was a young boy his parents separated and he and his brother, SP, the third complainant, were made wards of the State and placed in a boys’ home. Ultimately the two were placed in a boys’ home.

19 The applicant offered to take boys from this Boys’ home on outings in his capacity as a “special friend”. In early 1985 PP and another lad decided to run away from the Boys’ home. They went to the applicant’s home. The applicant told PP that if he behaved himself at the Boys’ home and attended school he would take him on outings. He gave PP a tour of his home, pointing out his collection of computer games and showing him a cupboard containing confectionary. Later that day the applicant returned the two boys to the Boys’ home.

20 The next weekend the applicant took PP and the other boy out for the first time. They watched videos. After this the applicant said that he had a “special movie”. He played a suggestive movie after which he told PP that he could sleep with him in his single bed. Once in bed the applicant embraced PP, rubbing PP’s penis (offence five on the Form One). The applicant pushed PP’s head down onto his penis, placing it in PP’s mouth (count seven). After this the applicant reached for some cream and rubbed it around PP’s scrotum, telling him that it was okay. He then commenced to push his penis into PP’s anus, which caused a degree of pain (count 8). PP told the applicant that it was hurting him, and the applicant withdrew and began rubbing his penis between PP’s buttocks, telling him that what they were doing was secret (offence six on the Form One).

21 Later that year staff at the Boys’ home took steps to restrict the contact between PP and the applicant. However PP, who disliked the strictness and discipline of the Boys’ home and who enjoyed the attention and gifts that he received from the applicant, skipped school from time to time and visited the applicant. On one occasion the applicant took PP to a nudist camp. During the visit he fondled PP’s penis while they were swimming naked in a dam (offence seven on the Form One). After this the applicant took PP to the shower block and rubbed soap around PP’s anus and attempted to penetrate him with his penis (offence eight on the Form One).

22 The applicant arranged to see PP on his fourteenth birthday. They purchased take-away food and went to the applicant’s home. After dinner the applicant gave PP a watch and a Rambo-style hunting knife. They played a videogame and after this the applicant sucked PP’s penis (count nine) and had anal intercourse with PP (count 10). The following day the applicant drove PP back to the Boys’ home, dropping him a few blocks from the entrance. On the way he stopped the car near the Lane Cove National Park and put his penis in PP’s mouth (offence nine on the Form One).

23 Contact between the applicant and PP continued for another few years, during which time PP was either living in a State home or with the applicant.

24 Count 11 in the indictment (and offences 10 and 11 on the Form One) related to the complainant LS.

25 LS was aged 14 when he met the applicant. This was in April 1986. LS’s parents were separated and he was living with his mother. LS had met another youth, RF, in Kings Cross. RF invited LS to stay with him at the applicant’s home. They spent time there playing videogames and watching videos. They slept on a mattress on the floor beside the applicant’s bed. After a few days RF left. The applicant told LS that he was welcome to stay, which he did. That night LS asked the applicant if he could sleep in his bed as he had a sore back. The applicant agreed and LS got into the applicant’s bed. The applicant encouraged LS to remove his nightwear. He commenced rubbing his penis between LS’s buttocks (offence 10 on the Form One) after which he sucked LS’s penis (count 11). When LS woke the next morning he felt the applicant rubbing his penis between his buttocks (offence 11 on the Form One). LS was due to return to his mother’s home. The applicant offered to drive him and on the way they stopped at a shopping centre and the applicant arranged to have his name and telephone number engraved on the back of LS’s watch.

26 A few days after these events LS complained to his father and the police were informed of the matter. The applicant was charged with sexual offences against LS. Later that year LS gave evidence at a committal hearing. At the close of the prosecution case the applicant made a statement. A number of character witnesses were called on his behalf, including Lynne Horman. Ms Horman testified that she was the applicant’s fiancée and that they shared a normal sexual relationship and that she had never seen the applicant making homosexual advances to anyone.

27 The applicant was committed for trial. Subsequently a decision was made by the Director of Public Prosecutions to discontinue the proceedings. The Director’s reasons for this decision did not relate to any unwillingness on the part of LS to give evidence.

28 On 19 January 2005 Ms Horman was given an undertaking by the Attorney General that she would not be prosecuted for perjury if she gave evidence in any criminal proceedings against the applicant. She informed the police that she had met the applicant in 1978 or 1979 at a tennis club. She had stayed at his home on occasions, sleeping on the lounge. The applicant often had a boy staying with him. The boy would sleep on an air mattress in his bedroom. She had not seen any sexual misbehaviour. Prior to the committal hearing of the charges involving LS the applicant had told her that he needed her to give evidence to the effect that they were engaged and that they enjoyed a normal sexual relationship.

29 Count 12 related to the allegation made by SP, PP’s brother. SP met the applicant at the same time as his brother. SP visited the applicant’s home on a number of occasions when sexual activity took place. SP said that at times the applicant videorecorded the activity. When the applicant was charged in 2002 with child pornography offences the police identified SP as one of the persons depicted in a videorecording. The footage shows (albeit briefly) a naked adult male groaning while embracing SP and rubbing up against SP’s backside. The incident occurred when SP was aged approximately 14 years.

30 The applicant pleaded guilty to the offences on 12 July 2006. He had been committed for trial and the trial had been fixed to commence on 10 July 2006. In the intervening two days discussions took place between the Crown and the applicant’s legal representatives as to an agreed statement of facts. The Judge assessed the utilitarian value of the pleas as justifying a discount of 10 per cent.

31 The Judge found that the applicant had targeted boys who were vulnerable because of their family circumstances. He concluded that the conduct was planned. The applicant was in a relationship of trust to each of the complainants (save for LS). His Honour found that there was no reason to find special circumstances other than by reason of the accumulation of the sentences.

The grounds of appeal

32 It is convenient to deal with grounds 6, 7 and 8 together at the outset:

Ground 6 – His Honour erred by failing to find special circumstances other than to deal with the accumulation of sentences.

Ground 7 – The individual sentences and the total effective sentence is manifestly excessive.

Ground 8 – His Honour erred in the manner in which he accumulated sentences and by failing to give proper effect to the principle of totality.

33 Central to the challenge made to individual sentences and to the aggregate sentence is that the Judge was required to sentence the applicant by reference to the pattern of sentencing for offences of this character that applied at the time the offences were committed: R v MJR [2002] NSWCCA 129; 54 NSWLR 368. Particular attention was directed to recent decisions of this Court concerning the approach to the specification of the non-parole period in cases in which the offences were committed prior to the introduction of the Sentencing Act 1989 (NSW): (AJB v R [2007] NSWCCA 51 and MJL v R [2007] NSWCCA 261).

34 In MJL Hidden J (with whose judgment Campbell JA agreed) said this:

“[24] The approach in MJR was developed further in AJB v R [2007] NSWCCA 51, a case involving sexual offences between 1979 and 1982, in which the Court had regard specifically to the practice at that time of setting non-parole periods: see the leading judgment of Howie J at [34] ff. Howie J noted that the specification of non-parole periods was then governed by the Parole of Prisoners Act 1966 which, unlike the current legislation, did not prescribe a prima facie proportion between non-parole period and head sentence. Such a statutory proportion was first introduced in the Sentencing Act 1989, which was repealed and replaced by the present Act.
[25] During the period with which that case was concerned, Howie J observed, a non-parole period was usually somewhere between a third and a half of the length of the sentence. His Honour concluded that that practice might itself be sufficient to constitute special circumstances justifying departure from the statutory proportion between sentence and non-parole period under the present regime. Indeed, his Honour said at [37] that the Court in that case ‘should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant.’
[26] The decision in AJB was handed down after the applicant was sentenced. The Crown Prosecutor in this Court acknowledged the principle enunciated in that case, but sought to distinguish it on its facts. That applicant had made out a much more favourable subjective case than the present applicant. The Crown Prosecutor submitted that in this case an effective non-parole period lower than that which his Honour imposed would be inadequate to reflect considerations of retribution and deterrence. Of course, as Howie J noted in AJB at [38], it has long been the law that a non-parole period should serve that function.
[27] However, in my view, the approach taken in AJB is applicable here and justifies a finding of special circumstances, quite apart from other subjective features which might have done so.”

35 Smart AJ expressed his agreement with Hidden J in MJL that the earlier sentencing practice constituted special circumstances. His Honour referred to the judgment of the High Court in Deakin v R (1984) 54 ALJR 765 at 766:

“[45] …The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence: see Power v R (1974) 131 CLR 623 at 629.
[46] After the decision in Power , the judges of this State followed the High Court’s decision as to the principles to be applied in setting non-parole periods (or minimum terms). Generally, they set non-parole periods of half to one-third of the aggregate sentence as intimated in AJB but there were instances where longer non-parole periods were set.
…
[48] With sentencing under the 1966 Act, after Power , Courts, in practice tended to impose lengthy head sentences and, as mentioned, non-parole periods that varied from about one-third to one half of the head sentence or, where there was more than one sentence of the aggregate sentences. Prior to Power the non-parole periods were probably shorter. See R v Portolesi [1973] 1 NSWLR 105 at 107 and R v Sloane [1973] 1 NSWLR 203 at 206.”

36 In AJB the offences were committed between 1979 and 1982, which explains the discussion of the Parole of Prisoners Act 1966. That Act was repealed by the Probation and Parole Act 1983, which commenced on 27 February 1984. This was the Act which introduced the regime of automatic release on probation at the expiration of a non-probation period in cases in which a sentence of three years or less was imposed. The Probation and Parole (Serious Offenders) Amendment Act 1987, which commenced on 1 March 1988, introduced minimum non-parole periods for certain offences which were defined as “serious offences”. This was achieved by the introduction of s 20A, which mandated that the non-parole period for such offences be at least three-quarters of the length of the sentence. The Court was given a discretion to specify a shorter period, but only if it determined that the circumstances justified that course. For present purposes it is sufficient to note that while certain sexual offences (as specified in cl 4 of Sch 5) constituted a “serious offence” for the purposes of s 20A, none of the offences of which the applicant was convicted was a “serious offence”.

37 The Sentencing Act 1989 commenced on 25 September 1989. It introduced the requirement for the court in sentencing a person to a term of imprisonment to firstly specify a minimum term and then to set an additional term. Section 5(2) provided that the additional term must not exceed one-third of the minimum term, unless the court decided that there were special circumstances.

38 Mr Boulten SC, who with Mr Walsh appeared on the applicant’s behalf, took the Court to a number of decisions of this Court which were said to show the pattern of sentencing for similar offences. These were cases in which the offender was sentenced under the Sentencing Act 1989 but they concerned offences committed in the 1980s over a period broadly comparable to the period covered by these offences.

39 R v Bamford (unreported), Court of Criminal Appeal, 23 July 1991, was an appeal against the severity of sentences imposed in October 1990 on the offender’s plea of guilty to five offences involving sexual assaults upon his stepdaughter. The assaults were not isolated instances but formed part of a wider pattern of behaviour, which extended over a substantial period of time. The first offence took place between June 1986 and June 1987 and was of sexual intercourse with the complainant when she was under the age of 10 and under the offender’s authority. This was an offence under s 66A and was subject to a maximum penalty of 20 years’ imprisonment. The second, third and fifth counts were offences under s 66C(2) involving sexual intercourse with the child when she was aged between 10 and 16 years and when she was under the authority of the offender. These offences took place in 1988 and 1989, when the child was aged between 10 and 12 years. The final count was an offence under s 66D involving attempted sexual intercourse with the child, when she was aged about 11. It was an ingredient of the offence that she was under the authority of the offender. This offence occurred in the early part of 1989. Each of these offences was subject to a maximum penalty of imprisonment for 10 years. Concurrent sentences were imposed for each of the offences. The offender’s overall criminality was reflected in the sentence on the first count, which was penal servitude for 12 years with a minimum term of nine years. Gleeson CJ (with whom Lee CJ at CL and Hunt J agreed) held that the head sentence, although a heavy one, was within the range of discretion however the minimum term was found to be excessive. It was reduced to seven years.

40 In R v Davie (unreported), Court of Criminal Appeal, 10 June 1992 the Court considered an application for leave to appeal against the severity of sentences imposed on the appellant on his plea of guilty to three offences of homosexual intercourse with children under the age of 16 years. Each offence carried a maximum penalty of 25 years’ penal servitude. The first offence involved an act of fellatio with a male child aged six years. The second offence also involved an act of fellatio with another male child who was aged five years. The third offence involved an act of anal intercourse with a third male child who was aged nine years. In each case the appellant had been in a position of trust in relation to his victim. He had recorded his activities on camera. The offences were carefully planned. The sentencing Judge was asked to take into account a further 29 offences of a similar nature involving six other young male children. The appellant was sentenced to an effective term of 12 years’ penal servitude comprising a minimum term of eight years and an additional term of four years. The appellant had been before the Court some years earlier, when he was aged 16, for offences involving similar activity and on that occasion had been extended leniency. Gleeson CJ (with whom Sheller JA and Newman J agreed) held that the objective circumstances of the offences were so serious that the sentences were within the bounds of proper discretion.

41 In R v Hill (unreported), Court of Criminal Appeal, 7 July 1992, the applicant sought leave to appeal against the severity of sentences imposed on him in November 1991 upon his plea of guilty to three counts of homosexual intercourse with one victim, eight counts of sexual intercourse with various boys, two counts of inciting one boy to have homosexual intercourse with another boy, nine counts of indecent assault and one count of inciting an act of indecent assault. The offences involved seven complainants whose ages at the time of the offences mostly ranged from nine to 12 years (there being one boy aged about 14 or 15 years).

42 The most serious offence charged in Hill was homosexual intercourse with a boy under the age of 10 years. The applicant was sentenced for this offence to a minimum term of 12 years with an additional term of four years. On the other counts of sexual and homosexual intercourse the applicant was sentenced to fixed terms of penal servitude for four years. On the counts of indecent assault, inciting homosexual intercourse and inciting indecent assault the applicant was in each instance sentenced to a fixed term of imprisonment of one year. All sentences were concurrent. The offences involved a range of sexual misconduct, fondling a boy’s penis, oral intercourse either by or on the boy, anal intercourse, and acts of gross indecency. On occasions three boys were involved at the one time. In some instances the applicant recorded the activity on videotape. The material revealed extensive criminal conduct between April 1987 and February 1991. Hill had a bad record for sexual offences. Smart AJ (with whose judgment Gleeson CJ and Caruthers J agreed) considered the sentence to be “a lengthy and heavy one.” There was however a need to protect the public and little or no prospect of rehabilitation. The appeal was dismissed.

43 In R v Eagles (unreported), Court of Criminal Appeal, 16 December 1993 the applicant applied for leave to appeal against the severity of sentences imposed on him for 18 assaults committed upon five young boys. A number of the offences occurred in circumstances in which the victim had come into contact with the applicant through his participation in the scouting movement. In one instance the applicant had been baby-sitting the victim whilst his mother, a near neighbour, worked nightshift. The offences included counts of homosexual intercourse with a male under 18 years under to s 78K, an offence punishable by a maximum term of penal servitude for 10 years. These offences involved anal intercourse with boys aged 10 years and 11 years. The offender defended the first of the charges involving victim A, a 10 year-old child. Following his conviction he pleaded guilty to offences involving the other four victims and asked that a further number of offences be taken into account on a schedule. The overall sentence imposed was ten years consisting of a minimum term of penal servitude of seven years and an additional term of three years. The sentence was described by Hunt CJ at CL (with whom Allen and Newman JJ agreed) as being “perhaps at or near the top of the range” but nonetheless within discretion.

44 In R v Fisk (unreported), Court of Criminal Appeal, 21 July 1998, the applicant sought leave to appeal against the severity of sentences imposed following his pleas of guilty to an indictment charging him with 24 offences of serious sexual misconduct against three male victims. The offences involved systematic sexual abuse of youths who had come from dysfunctional homes. Fisk was sentenced in February 1998. The first set of offences dated back to the mid-1970s and included counts of buggery. The counts relating to the two further victims occurred in the period 1986 to 1988. The Judge sentenced the applicant in a global fashion imposing concurrent sentences for each of the 24 offences. For the 1970s offences the applicant was sentenced to concurrent terms of penal servitude for 12 years comprising a minimum term in each case of nine years and an additional term of three years. These were the longest sentences. The case does not provide a great deal of assistance, since prominent in the way the matter was presented at first instance and on appeal was the assistance that the applicant had given to the Royal Commission into the New South Wales Police Service. The appeal against the severity of sentence was dismissed.

45 Nonetheless this review of a small sample of cases involving broadly similar sexual offences does support the applicant’s submission that there has been a significant upward trend in the length of sentences for offences of this character in recent years. It is an impression that accords with my recollection of the pattern of sentencing for sexual offences before the introduction of the Sentencing Act. I consider that error has been demonstrated in that the overall sentence is outside the range when regard is had to the pattern of sentencing of paedophile offenders for multiple offences over the period of the commission of these offences.

46 The challenge to individual sentences is made good with respect to the counts under s 81A. The applicant was sentenced to a term of 21 months’ imprisonment in relation to the conviction on count 4 (which charged him with an offence contrary to s 81A of procuring the commission of an act of indecency). The maximum sentence for this offence was two years’ imprisonment. When one takes into account the discount of 10 per cent for the plea of guilty it is apparent that the starting point was very close to the maximum sentence. This was an error.

47 I also consider that error has been demonstrated in the structure of the sentences, which produced an effective non-parole period that is approximately 75 per cent of the aggregate sentence. Again, taking into account the pattern of sentencing in the period, it was an error not to give effect to the finding of special circumstances so as to fix an effective non-parole period somewhat more in line with the pattern of non-parole periods (relative to the sentence) that applied at the date of the offending.

48 Error has been established and it is incumbent on this Court to exercise the sentencing discretion afresh. I do not propose to deal with each of the other grounds of appeal, save to comment on them in explaining the reasons for the sentences that I propose.

49 The applicant did not give evidence at the sentence hearing and there was no other oral evidence. It is not necessary to refer to his Honour’s factual findings since this Court is in as good a position to assess the evidence.

50 Victim impact statements were made by MCL, SP and PP. Each serves as an eloquent reminder, if it were needed, of the long-term impact of sexual abuse on children and, as MCL puts it, the mental toll that it takes on the victim. SP describes his distress at learning that he had been videorecorded as a child in a sexually compromising position. PP reports continued difficulty in developing appropriate relationships both with men and women. I agree with the primary Judge that the evidence does not justify a finding under s 21A(2)(g) that the emotional harm caused by the offence was in any case “substantial” for the purpose of aggravating the offence. This is because the Court presumes that offences of this description occasion emotional and psychological harm to the victim without the need for evidence of the fact.

51 A Probation and Parole report prepared by Ms Perrie, dated 20 October 2006, records that the applicant reported a quiet, happy and settled home life with his parents and older sister. His schooling was happy and successful. He remains close to his mother and sister, both of whom continue to support him.

52 The applicant had a creditable record of employment as a music teacher. He has achieved success as a composer.

53 The applicant gave a history to Ms Perrie of depression following his father’s death in late 1974. He had moved out of the family home and become lonely and depressed. He had sought treatment and for a period of about six months he had taken medication for sleeping and anxiety. He gave an account that he had commenced “his relationship” with his first victim, MCL, in 1983. Towards the end of the 1980s, when he said he had ceased offending, his depression had improved largely because his music career was improving. He told Ms Perrie that his guilt at abusing the boys was also increasing to an unacceptable level and that he knew that “he had to put a stop to it”.

54 Ms Perrie considered that overall the applicant presented as a complex man, who exhibited conflicting attitudes towards his victims. While he protested his remorse and regret over his behaviour, he tended to minimise some of the offences and, even occasionally, to feel betrayed by a victim for making complaints about him. He had stated eagerness to take part in the CUBIT sex offender program in gaol.

55 Ms Perrie’s report incorporated the report of Ms Sutton, a psychologist employed by the Department of Corrective Services Forensic Psychological Services Division. Ms Sutton had not met the applicant at the date she prepared her report. She reviewed material concerning the applicant’s offending history, and a psychiatric report written by Professor Greenberg. Ms Sutton considered on the basis of an actuarial risk assessment instrument, the STATIC-99, that the applicant’s risk of re-offending was “high”.

56 A psychological report prepared by W John Taylor, a clinical forensic psychologist, dated 9 September 2006, was tendered in the applicant’s case. Mr Taylor’s assessment was based upon an interview with the applicant and the results of psychological tests. Mr Taylor describes the applicant as having a sexual disorder of the paedophilic type. The tests carried out by Mr Taylor were suggestive of the applicant having adequate control over impulse and drive. Mr Taylor assessed the applicant as having a low - moderate risk of sexual recidivism.

57 Mr Taylor comments on the report of Professor Greenberg in which it is noted that “his [the applicant’s] risk is dependent on whether he has contact with children. Should Mr Featherstone have no contact with children, his risk can be managed and is probably low. However should he engage children or establish relationships with children, his risk for potential sexual abuse would significantly increase”.

58 A number of testimonials were tendered on the applicant’s behalf. The applicant has undertaken correspondence studies with the Emmaus Bible School while in custody. Mr Smith, an Emmaus marker, reported that the applicant had been conscientious in his completion of a number of courses. He appeared to be an intelligent and caring person.

59 An instructor with the Cross Road Bible Institute attested to having acted as the applicant’s mentor in the two years he had been in custody. He considered the applicant to be a sincere person seeking repentance.

60 The assistant to the Senior Chaplain at the Parklea Correctional Centre reported that the applicant had shown genuine remorse and presented as a quiet, friendly individual who had shown himself ready and willing to assist others undertaking courses as well as with their letter writing and other needs.

61 The Reverend Paul Drury, of the prison Chaplaincy Service, reported that the applicant had been a consistent member of the Bible Study Group and that he had displayed a gentle air of courtesy, cooperation and respect.

62 A number of certificates were tendered demonstrating the applicant’s successful completion of courses while in custody.

63 An affidavit sworn by the applicant’s mother referred to the applicant’s work in providing voluntary services to elderly patients in nursing and convalescent homes. She visits her son weekly and is concerned that poor health may prevent her continuing to do so.

64 The applicant’s sister also swore an affidavit recording her continued support for the applicant.

65 I am satisfied that special circumstances justify a departure from the statutory proportion between the non-parole period and the head sentence both with respect to individual sentences and in the effective non-parole period viewed against the aggregate sentence. This is because of the need to reflect the pattern of sentencing (including the relationship between the non-parole period and the head sentence) at the time of the commission of the offences and in the case of the non-parole period imposed on count eight because of the fact of accumulation of sentences.

66 The sentences that I propose will be discounted in each case by 10 per cent to reflect the utilitarian value of the pleas of guilty. It was submitted that a greater discount was appropriate in relation to the offence charged in count 12 because the applicant had been discharged at committal in respect of this offence and the charge had only been resurrected at the time when the pleas of guilty in relation to the other three complainants were negotiated. The Crown did not concede that this was the case. The evidence on the hearing of the appeal did not establish the matter one-way or the other. To my mind nothing turns on it. The applicant pleaded guilty to this count, together with the other counts on 12 July, two days after his trial had been fixed for hearing. The complainants gave evidence in the Local Court (AB 147.52). The pleas of guilty followed some course of negotiations. They were relatively late pleas and a 10 per cent discount is appropriate in respect of each of them.

67 I turn now to the remaining submissions advanced on the applicant’s behalf. The next matter is that the pattern of offending had concluded more than 13 years prior to the applicant’s arrest. Mr Boulten submitted that this was some evidence of the applicant’s progress towards rehabilitation: R v Todd [1982] 2 NSWLR 517 at 519.

68 The assessment of the applicant’s prospects of rehabilitation and, associated with this, the likelihood of him re-offending, is the subject of conflicting evidence. The Probation and Parole officer reported that the applicant’s attitude to his offending was contradictory in that he both minimised the seriousness of the offences while at the same time stating that he had done the wrong thing and that he was “remorseful and full of shame”.

69 Ms Sutton assessed the applicant to be in the high-risk category for recidivism. As noted, this assessment is based on an actuarial measure. It says nothing about whether this applicant is in fact likely to re-offend. I give little weight to it. The applicant’s conviction in 2003 for offences involving child pornography demonstrates his continuing sexual interest in children as at 2002. Given the evidence that the applicant has a sexual disorder of the paedophilic type, it is reasonable to infer that his sexual interest in children is likely to continue at least in the absence of treatment. His expressions of remorse and shame combined with his stated willingness to undergo the CUBIT program are positive indicators that he has prospects of rehabilitation. The fact that he has not re-offended by the commission of sexual assaults on children over a sustained period does demonstrate some ability to control his impulses. There exists a risk of re-offending should he find himself in an environment where there are children. This may be assessed as a low risk, since his convictions would preclude him returning to employment as a teacher of children and his eventual return to the community is likely to be on parole subject to conditions which would prevent him having contact with children. I assess the applicant’s likelihood of re-offending as low and his prospects of rehabilitation as reasonable.

70 The applicant is a person who was otherwise of good character at the time of the commission of the offence. The nature of the offences and the fact that they were committed over a lengthy period means that little allowance by way of mitigation can be extended to the applicant on this account. The circumstance that all the offences (save that charged in court 11) involved abuse of a position of trust aggravates them.

71 It is necessary to take into account the 12 matters listed on the Form One in sentencing the applicant for the offence charged in count eight. This includes the offence involving procuring Ms Horman to give false evidence on the applicant’s behalf. This was, itself, a most serious offence. It is to be noted that the applicant committed the offence against SP after he had been charged with the offence against LS.

72 I accept Mr Boulten’s submission that in structuring the sentences it is appropriate to take into account the sentence earlier imposed for the child pornography offences. The applicant has been continuously in custody since 4 September 2003. This is a matter to be taken into account in giving effect to the principle of totality.

73 While the applicant was on remand at the Parklea Correctional Centre it appears that there were a number of industrial disputes and, it may be other incidents, which resulted in the applicant and other prisoners being locked in their cells on an unusually large number of occasions amounting in all to some 90 days. Mr Boulten submitted that this was a factor to be taken into account in mitigation of sentence. I am not persuaded to do so. On occasions the Court will reduce the length of a sentence to take into account that the offender will be exposed to conditions of custody that are more onerous for him or her than for the prison population generally. There is no question of that here. All the prisoners incarcerated at Parklea (and it may be in other prisons) were affected by these events.

74 The Judge described the offences in relation to each of the victims as being “representative of his conduct”. This was the subject of a ground of appeal since while it was acknowledged that the agreed facts supported the inference that the offences against MCL were representative of a broader pattern of conduct as were the agreed facts concerning SP, the same could not be said with respect to PP and LS. I accept that is so. To my mind little turns on it. The significance of the circumstance in sexual cases that particular offences may be representative of a pattern of sexual misconduct is to deprive the offender of a submission that the offences were isolated lapses. No such submission was made (or realistically could have been made) in this case.

75 The sentence hearing proceeded on an acceptance that the applicant would serve his sentence in conditions of protection. There was no evidence led as to the likely conditions to which the applicant will be subject by reason of his status in this respect. As this Court explained in R v Way (2004) 60 NSWLR 168 at [179] special arrangements now exist for classes of prisoners, which do not reflect the harsh conditions, or the degree of isolation and lack of access to programs, which was the lot in the past of persons who were placed on protection. In the absence of any material relating to the conditions of the applicant’s confinement I am not inclined to accord significant weight to the circumstance that he is a protection prisoner.

76 The effect of the sentences that I propose is that the applicant will be subject to an effective non-parole period of seven years dating from 4 September 2004. Taking into account the earlier sentence, the applicant will have been in custody for eight years before he is eligible to be considered for release on parole. The sentences that I propose in the aggregate amount to a term of 12 years and seven months. The effective non-parole period is a little over 55 per cent of this term.

77 I propose that in relation to the offences charged in counts one, two, four, five and 12 the sentences be for fixed terms without a non-parole period. The Court is required by s 45 of the Sentencing Procedure Act to make a record of the reasons for declining to set a non-parole period in relation to each of these sentences. My reason is in each case because the sentences that are to be imposed in relation to the remaining counts make the specification of non-parole periods for these offences of no utility.

78 The sentences imposed for the offences charged in counts three, four, five and seven are in each case for a term of less than three years and the Court is required by s 50 of the Sentencing Procedure Act to order the applicant’s release on parole at the end of the non-parole period, even though it appears that he may not be eligible for release because of other sentences to which he is subject.

79 I have taken into account the principle of totality in the structure of the sentences. It is this consideration that explains why the sentences imposed for the offences charged in counts five and six (the third discrete episode of offending against MCL) involved a very modest degree of accumulation on the earlier sentences for offences against that complainant.

ORDERS


1. Grant leave to appeal;

2. Allow the appeal and quash the sentences imposed in the District Court. In lieu thereof the applicant is sentenced as follows:


(i) Count 1 – a fixed term of 11 months’ imprisonment to date from 4 September 2004 and to expire on 3 August 2005;

(ii) Count 2 – a fixed term of nine months’ imprisonment to date from 4 September 2004 and to expire on 3 June 2005;

(iii) Count 3 – a non-parole period of 14 months to date from 4 August 2005, which will expire on 3 October 2006, with a balance of term of 14 months which will expire on 4 December 2007 – pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 direct the release of the offender on parole at the end of the non-parole period;

(iv) Count 4 – a fixed term of 14 months’ imprisonment to date from 4 August 2005 and to expire on 3 October 2006;

(v) Count 5 – a non-parole period of 14 months to date from 4 March 2006, which will expire on 3 May 2007, with a balance of term of 14 months imprisonment to expire on 3 July 2008 – pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 direct the release of the offender on parole at the end of the non-parole period;

(vi) Count 6 – a fixed term of 14 months’ imprisonment to date from 4 March 2006 and to expire on 3 May 2007;

(vii) Count 11 – a non-parole period of 14 months to date from 4 May 2007, which will expire on 3 July 2008, with a balance of term of 14 months which will expire on 3 September 2009 – pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 direct the release of the offender on parole at the end of the non-parole period;

(viii) Count 12 – a fixed term of nine months’ imprisonment to date from 4 July 2008 and to expire on 3 April 2009;

(ix) Count 7 – a non-parole period of one year and 10 months to date from 4 April 2009 and to expire on 3 February 2011 with a balance of term of one year and 10 months expiring on 4 December 2012;

(x) Count 8 - (taking into account the 12 offences on the Form 1) a non-parole period of two years and five months to date from 4 April 2009 and to expire on 3 September 2011 with a balance of term of five years and seven months which will expire on 3 April 2017;

(xi) Count 9 – a non-parole period of one year and 10 months to date from 4 April 2009, which will expire on 3 February 2011, with a balance of term of one year and 10 months to expire on 4 December 2012;

(xii) Count 10 – a non-parole period of two years to date from 4 April 2009 and to expire on 3 April 2011 with a balance of term of two years to expire on 3 April 2013.

80 ADAMS J: I agree with Bell JA.

81 LATHAM J: I agree with Bell JA.

**********

15/05/2008 - Incorrect date in order 2 (ix) and (xi) Previously read "4 December 2013" should read "4 December 2012" - Paragraph(s) [79]