O'Sullivan v R

[2019] NSWCCA 261

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	O’Sullivan v R [2019] NSWCCA 261
Hearing dates:	23 October 2019
Decision date:	01 November 2019
Before:	Hoeben CJ at CL at [1]; Walton J at [54]; Price J at [55]
Decision:	(1)   Leave to appeal granted. (2)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – 14 counts of indecently assaulting a male person contrary to s 81 of the Crimes Act 1900 (NSW) (since repealed) – offending took place over a period of 11 years while applicant was a teacher – at time of sentence applicant serving a sentence of imprisonment for similar offences committed against different complainants – aggregate sentence of 8 years and 6 months with a non-parole period of 6 years – there was a single ground of appeal alleging manifest excess – sentencing principles comprehensively covered by sentencing judge – disputed issues involved matters of discretion – manifest excess not established – leave to appeal granted but appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 61M(2), 81 Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 19, 21, 21A, 25 Criminal Appeal Act 1912 (NSW) – s 5(1)(c) Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 – s 25AA Parole of Prisoners Act 1966 (NSW) (repealed)
Cases Cited:	AB v The Queen [1999] HCA 46; 198 CLR 111 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Burgess v R [2019] NSWCCA 13 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 EG v R [2015] NSWCCA 21 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Nguyen v The Queen [2016] HCA 17; 256 CLR 656 R v MJB [2014] NSWCCA 195 R v Todd [1982] 2 NSWLR 517 R v Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1
Category:	Principal judgment
Parties:	Darcy John O’Sullivan – Applicant Regina – Respondent Crown
Representation:	Counsel: M Johnston SC – Applicant B Baker – Respondent Crown   Solicitors: Greg Walsh & Co – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2016/084335
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) there is to be no publication of information that identifies or is likely to identify the complainants.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 1 November 2018 Before: Traill DCJ File Number(s): 2016/084335

JUDGMENT

1. HOEBEN CJ at CL:

Offences and background

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him on 1 November 2018 in the District Court at Sydney by her Honour Judge Traill.

2. The applicant pleaded guilty and was sentenced in relation to 14 counts of indecently assaulting a male person, contrary to s 81 of the Crimes Act 1900 (NSW) (since repealed) which had a maximum penalty of imprisonment for 5 years.

3. Over a period of 11 years (1972 to 1983) the applicant committed acts of indecent assault against 15 male students while he was a teacher at Marist Brothers at Hamilton (counts 1-12) and Deputy Principal or Principal at St Marys High School in Casino (counts 13 and 14, Form 1 matter).

4. The sentencing judge imposed an aggregate sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years. The particulars of the offences, each relating to a separate complainant and indicative sentences with respect to each count, are summarised as follows:

Count	Offence Particulars	Indicative Sentence
Count 1	In 1972, the applicant put his right hand underneath victim PM's (14 years old) school shirt, rubbed his navel region, moved his hand down underneath PM's underwear and touched his pubic region. This was not an isolated incident against PM.	9 Months
Count 2	In 1973, the applicant hugged MM (13 or 14 years old) from behind, put his hand underneath MM's underwear and rubbed MM's penis and testicles. The applicant tugged MM’s shorts partway down so his penis was exposed and continued to stroke MM’s penis, which was erect. This continued until MM ejaculated. This was not an isolated incident against MM. Form 1 Offence In 1982, the applicant put his hand down the back of DR’s (14 or 15 years old) pants and rubbed his bottom. This was not an isolated incident against DR.	Taking into account Form 1: 36 months
Count 3	In 1973, the applicant started rubbing MD's (15 or 16 years old) back, moved his hand down inside MD's underwear and put his finger in between the cheeks of MD's buttocks and touched MD's anus, moving his finger. This was not an isolated incident against MD.	24 months
Count 4	In 1973, the applicant put his hand on PO's (14 years old) thigh and slid his hand inside PO's shorts, touching the crease of PO's crotch.	9 months
Count 5	In 1973, the applicant sat PC (13 or 14 years) on his knee, rubbed the inside of his legs and then his groin region and genitals. The applicant then rubbed PC's chest and hugged him. This was not an isolated incident against PC.	9 months
Count 6	In 1975, the applicant asked GB to sit on his knee, which he did. The applicant placed one hand on GB's waist and slid the other towards GB's genitals and onto GB's penis outside his shorts. GB felt what he believed to be the applicant's erect penis under his bottom.	12 months
Count 7	In 1976 while reprimanding JW (13 years old) saying "it doesn't have to be like this, you are a nice, soft, young boy... sit down here and we can just talk about this", the applicant sat JW on his knee and pulled JW's hand onto his crotch.	9 months
Count 8	In 1976, the applicant unbuttoned one of the buttons on MB's (13 years old) shirt, placed his hand underneath the shirt and rubbed MB on the chest and nipple area. The applicant then moved his hand inside the front of MB's shorts and inside his underwear and fondled and squeezed MB's genitals. This was not an isolated incident against MB.	24 months
Count 9	In 1976, GC (12 or 13 years old) was called to the applicant's office. The applicant grabbed GC and pulled between his legs, spoke to him about being naughty and cuddled GC. The applicant rubbed GC on the upper legs and torso above his clothing. This was not an isolated incident against GC.	6 months
Count 10	In 1977, the applicant walked up behind SS1 (13 or 14 years old) and tried to tuck his shirt in at the back. The applicant placed half his hand inside SS’s pants and felt the top half of his buttocks on top of his underwear. This was not an isolated incident against SS1.	6 months
Count 11	In 1977, the applicant pressed his shin on the crotch area of SS2 (12 or 13 years old) and rubbed against it. The applicant then pinched SS2's penis on the outside of his clothing.	9 months
Count 12	In 1977, the applicant had GM (13 years old) sit on his knee. The applicant put his right hand on GM's upper leg and then put his left hand on GM's upper leg and started rubbing up and down.	6 months
Count 13	In 1980, the applicant put his arms around SH (10 or 11 years old) and put his hands on SH's buttocks. The applicant tucked SH's shirt into his shorts and while doing so, put his hand inside SH's shorts and touched his penis above his underwear. This was not an isolated incident against SH.	18 months
Count 14	In 1983, the applicant placed his hand on the middle of MW's (14 years old) buttocks above his shorts and then rubbed MW's buttocks between his cheeks with his middle fingers. He then rubbed MW's buttocks in a circular motion and used his middle and index fingers and jabbed MW's anus area twice on the outside of his clothing. This was not an isolated incident against MW.	9 months

5. The indicative sentences incorporated a 10 percent discount for the applicant’s plea of guilty which was entered on Thursday, 8 February 2018, three days after the trial was listed to commence. Special circumstances were found such that the applicant’s non-parole period reflected 70.5 percent of the total sentence. The sentence commenced on 1 March 2018 and will expire on 31 August 2026. The non-parole period will expire on 29 February 2024.

6. At the time of sentence, the applicant was serving an aggregate sentence of 6 years imprisonment with a non-parole period of 3 years for similar offences committed against different complainants. This sentence commenced on 24 August 2016 and will expire on 25 August 2022.

7. Originally the applicant relied upon six grounds of appeal as follows:

Ground 1 – The sentence imposed by the learned sentencing judge was too severe having regard to the objective and subjective circumstances of the offences.

Ground 2 – That the learned sentencing judge erred in her finding as to a 10 percent discount for the plea of guilty.

Ground 3 – The learned sentencing judge fell into error in her consideration of the feature of delay.

Ground 4 – Her Honour fell into error in her approach to the victim impact statements.

Ground 5 – That her Honour erred in her finding as to the objective seriousness of the offending conduct by “double counting” the feature of breach of trust under s 21A(2)(k) Crimes (Sentencing Procedure) Act.

Ground 6 – Her Honour erred in her application of s 25AA Crimes (Sentencing Procedure) Act.

8. Grounds 2 – 6 were withdrawn on 22 October 2019. Thereafter, the applicant relied upon a single ground of appeal:

That the sentence imposed by the sentencing judge was too severe having regard to the objective and subjective circumstances of the offences.

SENTENCE PROCEEDINGS

9. Her Honour proceeded to assess the objective seriousness of the offending and noted that the offending took place over 11 years and involved 15 complainants whose age ranged between 10 to 14 years.

10. Her Honour assessed counts 1, 4, 5, 7, 9, 10, 11, 12 and 14 as being at the low, or towards the lower end of the range. The indicative sentences after a 10 per cent discount were in the range of 6–12 months. Counts 3, 6, 8 and 13 were assessed as being within the midrange and count 2 was assessed as being towards the higher end of the range, taking into account the matter on the Form 1. The indicative sentence for count 2 was 36 months.

11. Her Honour noted that most of the complainants stated that the offending was not isolated. Conduct similar to that encompassed by the charges was set out in the Agreed Facts as context evidence. Her Honour accepted that those uncharged acts could not be taken into account as an aggravating factor. Her Honour did take that conduct into account as relevant to the denial of any leniency that might be afforded if the conduct had been a one-off or isolated event.

12. Her Honour regarded general deterrence as very important for offending of this kind. Her Honour took into account the age of the complainants at the time of the offending. Her Honour noted that the applicant was in a position of trust and authority in respect of the complainants. Her Honour concluded that a custodial sentence was essential if the courts were to play their proper role in protecting young children from sexual attacks by adults. Her Honour considered that each of the offences was objectively serious because it involved a breach of trust by a person in authority.

13. In relation to the offending generally, her Honour observed that with the exception of count 2 where the applicant masturbated MM to ejaculation, the acts constituting the offences did not involve penetration or ejaculation. There was no fellatio, physical force or threats and that generally the offences were opportunistic, although no doubt highly embarrassing and humiliating for the victims. Her Honour found that the offending involved a blatant breach of trust given that their parents had entrusted the care of the victims to him. Her Honour found the offending to be serious because of the gross breach of trust involved, notwithstanding the fact that the acts which constituted the offending fell well short of the worst examples of this kind of conduct.

14. Her Honour noted that the maximum penalty for each offence was imprisonment for 5 years. She noted that while offending of this kind did not produce physical harm, it had been consistently demonstrated to produce significant and long term psychological consequences. Her Honour referred to the increased understanding of the psychological effects of such offending on victims brought about by the Royal Commission into Institutional Responses to Child Sexual Abuse. Her Honour noted that offending of this kind could have catastrophic consequences for both boys and girls causing them to lead a life which was seriously compromised by their experience.

15. In relation to the applicant’s subjective case, her Honour noted that he was aged 80 and was the eldest of four children. He had trained as a teacher and obtained a Bachelor of Education. In 1962, he had entered the Marist Brothers Institute and undertook religious training until 1965. He was sent to a number of schools in Queensland and New South Wales. He effectively retired in 2010.

16. The applicant was diagnosed with type 2 diabetes in 2010 and with chronic kidney disease, stage 3. There was material before the court to the effect that the applicant had been suffering from anxiety and depression while the court matters were outstanding. He had been receiving counselling for a long period of time to address anxiety, memory and concentration problems and low energy. Until he was sentenced in 2016, he had attended over 30 sessions with a psychologist.

17. Her Honour had regard to a report of a psychiatrist, Dr Nielssen, dated 7 June 2016 which was tendered in the earlier sentence proceedings. The applicant told Dr Nielssen that he had only a fractional memory of the offending and that his behaviour towards the children under his care was an outlet of physical affection rather than motivated by any kind of sexual gratification. Her Honour noted that the applicant maintained that position when he gave evidence in the present sentence proceedings.

18. Her Honour noted that there was no material before her to the effect that the offending occurred against a background of any underlying psychological condition, nor was there any material that shed light on the motivation for his offending. Her Honour noted that the applicant had not been diagnosed with any psychiatric disorder except anxiety over recent years, which was understandable given the impending criminal proceedings.

19. The applicant was again interviewed by Dr Nielssen and a report dated 20 September 2018 was before her Honour. The applicant told Dr Nielssen that he could not remember the names of the victims and that he was not able to confirm the dates of each of the offences. He did, however, accept that the charges reflected a pattern of behaviour in those years and he acknowledged that he had committed the offences. He told Dr Nielssen that in 1996 there was a complaint made about him which led to him thereafter not being given teaching duties.

20. The applicant told Dr Nielssen that in his early life he was attracted to females and he again asserted that his behaviour towards the children under his care was an outlet for physical affection rather than motivated by any kind of sexual gratification. He maintained that he did not become sexually excited or gain sexual gratification from the offending behaviour. He described his interest in the children as “more a kind of paternal interest”.

21. Her Honour concluded that the applicant showed a total lack of understanding of the magnitude of his predatory offending. Her Honour rejected the applicant’s assertions and found that his interest in young boys was for his own sexual gratification. Her Honour found that:

“Despite the offender having completed over two years of a sentence, he still does not understand the gravity of his offending, nor the impact his offending has had on the victims. The offender gave evidence today and was cross-examined in relation to his remarks to Dr Nielssen. The offender not only displayed no understanding of the offending, he lacks any empathy for the victims. He described his offending as ‘semi-affectionate’ and denied his actions again were for sexual gratification. I therefore find he has no insight at all into his offending and I cannot accept that he was sorry for what he has done. He knows many of the victims are in court, he has sat through their victim impact statements and rather than apologise to them for his offending behaviour, he described his time as a teacher as “wonderful and happy for those seven wonderful years”.” (Sentence judgment 26.2)

22. Her Honour also found that the applicant had no contrition or remorse.

23. The applicant told Dr Nielssen that he had coped better than he would have thought in prison and had been able to help a number of other inmates who were unable to write letters or complete forms. He was able to maintain his physical health while in prison but still had health issues which included depression for which he was taking medication. He was taking medication for a pituitary tumour which was diagnosed in 1991 and which required operations in 1991, 1995 and 1996. His diabetes is managed with diet and exercise. Her Honour accepted that there was a relatively low risk of the applicant re-offending upon his release. Her Honour based that finding on his age and the fact that he would not be in a position of trust and authority again and that he would be placed on a child protection register. Otherwise her Honour found that the applicant demonstrated zero insight into his offending and had not taken any steps to rehabilitate himself while he was in prison.

24. Her Honour had before her a number of testimonials as to his good character. However, because the applicant’s behaviour was facilitated by his position and good character, her Honour had regard to the provisions of s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Even though that provision did not apply to historical sexual offence cases, her Honour was satisfied that the applicant’s good character was of assistance to him in the commission of the offences. As a result, she gave the applicant’s previous good character little weight.

25. Her Honour took into account the hardship of the applicant in custody given his age. Her Honour took into account the principles set out in the case law in determining whether a sentence will be a crushing one. In that regard, her Honour accepted that the applicant would find a fulltime custodial sentence onerous as a result of his age.

26. In relation to delay, her Honour noted that the offending had occurred over a lengthy period of time and that the last of the offences had occurred approximately 35 years ago. Her Honour noted that the fact of delay between the time of offending and the disposition of the matter should only operate as a mitigating factor where the delay would cause unfairness to the applicant. Her Honour further noted that this Court had determined that the mere passage of time between the committing of a sexual offence upon children and the disclosure of the offence, is of little weight as a factor in mitigation of penalty. This was because all too frequently sexual offences committed against a child were not revealed until the victim was an adult and when the effect of the abuse upon them finally overcame them in later life.

27. Her Honour noted that in this case a number of the complainants came forward after the applicant’s abuse was reported in the media. Her Honour accepted that the complainants were humiliated and degraded by the applicant and they would have found it difficult to disclose the nature of the acts performed upon them. There was also the humiliation of being sexually assaulted in front of their entire class. Since the applicant was a teacher and/or school principal, he would have been perceived by the victims as occupying a powerful and respected position.

22. Her Honour noted that the solicitor for the applicant had not submitted that his sentence should be mitigated because of the delay between the offending and the sentence proceedings. Her Honour noted that there was no material before her to the effect that the applicant’s life had been adversely affected by the delay. Her Honour’s findings on delay were as follows:

“As the years passed, the offender would have become increasingly confident that these offences would never come to light and the victims would remain silent. I accept that the offender will serve his sentence as a relatively older main of ill health, he is 80. Any sentence will be more onerous than if he served the sentence at about the time of the offending, however, I cannot find that the offender has suffered any detriment as a result of delay.” (Sentence judgment 32.3)

29. Her Honour next considered the victim impact statements. Her Honour noted that one of the purposes of a sentence was to recognise the harm done to the victim of crime in the community. Her Honour further noted that the long term psychological effects on victims of sexual abuse were well known and were now in the public and judicial consciousness.

30. Her Honour noted that Adamson J in R v MJB [2014] NSWCCA 195 had acknowledged that the damage done to children who are victims of sexual assault by adults was well known and could be assumed. In referring to that statement of principle, her Honour was also conscious of what Simpson JA said in R v Tuala [2015] NSWCCA 8 at [81] in that caution must be exercised before a victim impact statement can be used to establish an aggravating factor to the requisite standard.

31. Seven victim impact statement were read to the court. Each was very moving and set out in detail the way in which the lives of the authors had been seriously damaged by the applicant’s conduct. A number of the victims had self-medicated with alcohol and drugs and all had experienced significant psychological problems.

32. Her Honour acknowledged that in sentencing the applicant, she was required to impose a sentence which properly reflected the objective seriousness of the offences and to fix a sentence that would ensure that the time the applicant must spend in custody reflected all the circumstances of the offence including its objective seriousness, the need for general deterrence, the need for specific deterrence and to meet the fundamental purpose of punishment, namely the protection of society.

33. Her Honour noted that since the applicant was sentenced by her in 2016, Parliament had enacted an amendment to the Crimes (Sentencing Procedure) Act 1999 by way of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, s 25AA. The legislation commenced on 31 August 2018. The Attorney General in the second reading speech stated:

“The new s [25AA] inserted into the Act implements one of the Royal Commission’s key recommendations. This new section will require courts sentencing for historical offences to apply current sentencing practices and standards and our modern understanding of the trauma caused to children by sexual abuse. The purpose of this new provision is to override the current common law rule that a court must apply the sentencing standards from the time of the offence. In historical cases of child sexual abuse, this is resulting in lower sentences and discounts applied to reflect the leniency of sentencing for these offences in times past. This perpetrates our past lack of understanding of how seriously these offences should be treated and our past lack of understanding of the significant impact they have on the victim. The new provision will ensure that sentences meet current community expectations, to the extent possible within the upper limit of the maximum penalty from the time of the offence.” (Legislative Assembly Hansard, 6 June 2018)

34. Her Honour noted that when she sentenced the applicant in September 2016, s 25AA did not apply and as a result her Honour had regard to a pattern of sentencing in respect of indecent assaults committed against children in the 1970s and the 1980s. At that time, the non-parole period was closer to 50 per cent of the head sentence. In those sentence proceedings, her Honour found special circumstances and varied the statutory ratio to reflect the sentencing practice at the time of those previous offences. In contrast, her Honour noted that on this occasion the applicant was to be sentenced in accordance with the current practice at the time of sentence.

35. Her Honour noted that the principles of sentencing for child sexual offences were authoritatively stated by this Court in R v Van Ryn [2016] NSWCCA 1 where R A Hulme at [179] referred to EG v R [2015] NSWCCA 21 where Hoeben CJ at CL said:

“179   …

“General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.””

36. In sentencing the applicant in accordance with s 25AA, her Honour accepted that she was still constrained by the statutory maximum penalty in place at the time of the offending. All of the offences to which the offender pleaded guilty were contrary to s 81 of the Crimes Act (now repealed). At the time of the offending, s 81 encompassed a wide range of more serious conduct which would now constitute sexual intercourse. Section 61M(2) and other offences which were originally encompassed by s 81 now carry a maximum penalty of 10 years with a standard non-parole period of 8 years.

37. Her Honour further observed that penalties now prescribed for similar offending far better reflected the community’s abhorrence of this type of criminal behaviour. Her Honour also took into account that sexual intercourse, such as fellatio and cunnilingus, were included in s 81 as an indecent assault at the time of the offending. The legislative changes have separated out these offences. This has to be taken into account when assessing the objective seriousness of offences contrary to s 81.

38. With respect to the offending generally, her Honour said:

“In relation to the offences currently before me, there was no violence or threats accompanying the offender’s conduct nor was the offender ever naked nor did he do anything which overtly involved the victims actually touching the offender. The physical conduct, save for count 2, does not amount to the worst type of conduct which may be caught by s 81 between the 1970s and 1980s. In sentencing the offender in 2016, I had regard to the sentencing patterns at the time of the offending and reduced the non-parole period by 50%. This is no longer the practice … I am therefore no longer constrained to follow the sentencing pattern of the past. I am, however, constrained by the maximum penalty at the time. I have also taken into account the fact that these offences were committed against multiple victims.” (Sentence judgment 44.4)

39. Her Honour took into account totality and accumulation and said:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation and concurrence as well as questions of totality. The total sentence imposed must reflect the totality of the criminality in accordance with the approach in Pearce v The Queen (1998) 194 CLR 618:

“Sentences considered appropriate for each offence are to be determined and the overall objective criminality is then to be taken into account when considering whether they should be served concurrently or cumulatively upon one another, either in part or total.”

There are 15 complainants. The sentence to be imposed should reflect the discrete offences involving each individual complainant, although I note one matter is on a Form 1. I intend to impose an aggregate sentence. This does not mean that considerations of accumulation are no longer relevant. The ultimate sentence imposed must reflect the total criminality. It is necessary to ensure that the aggregation of all sentences is a just and appropriate measure of the total criminality involved. The aggregate non-parole period must reflect the minimum period of imprisonment required to be served by an offender having regard to all the purposes of justice.” (Sentence judgment 44.3-45.1)

40. Her Honour carefully considered the existing sentence to determine the extent to which the sentence to be imposed should be cumulative or concurrent. Her Honour took into account the applicant’s ill health and age and the fact that there were no programs available to him in prison. Her Honour also took into account the principles of totality and accumulation, denunciation and general and specific deterrence. Her Honour acknowledged that given the applicant’s age, it might well be that the remaining portion of his life will be spent in custody.

41. Her Honour found that although advanced age was a relevant consideration in determining whether a sentence would be a crushing one, she was comforted by Dr Nielssen’s report that the applicant’s physical health had been maintained while in prison and that he had coped with prison life much better than he had originally expected. Her Honour found special circumstances due to the applicant’s age and ill health and adjusted the non-parole period accordingly.

Applicant’s submissions

42. The applicant submitted that when one had regard to both sentences imposed on him, the total sentence was just over 10 years with an effective minimum non-parole period of 7 years 6 months. The applicant submitted that such a sentence was unreasonable and unjust. He submitted that having regard to the combination of the following matters, her Honour’s exercise of the sentencing discretion had miscarried and the sentence imposed was too severe (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]).

1. The applicant was sentenced for 14 counts of indecent assault, contrary to s 81 Crimes Act as it was between 1972 and 1983. The maximum penalty for the s 81 offence during this period was 5 years.

2. Although s 25AA of the Crimes (Sentencing Procedure) Act applied to this matter, and the court must sentence an offender in accordance with the sentencing practices at the time of sentencing and not the time of offence, the sentencing exercise is still constrained from the sentencing practices that would be imposed if the offence were committed at the time of sentence. The first constraint is provided by s 19(1) Crimes (Sentencing Procedure) Act which requires the court to sentence according to the maximum penalty at the time which was 5 years. The second constraint is provided by s 24AA(2) in that no standard non-parole period applies.

3. The sentencing judge assessed counts 1, 4, 5, 7, 9, 10, 11, 12 and 14 as being at the low or towards the lower end of the range and the indicative sentences after a 10 per cent discount were 6-12 months. Counts 3, 6, 8, 13 were assessed as being within the midrange and count 2 as towards the higher end of the range, taking into account matters on a Form 1.

4. The indicative sentences had been reduced by 10 per cent after the plea of guilty. Accordingly, the start point chosen by her Honour would have been greater.

5. Although the sentencing judge referred to taking into account totality, the aggregate sentence of 8 years 6 months failed to adequately reflect the principle of totality, having regard to the total criminality, the age of the complainants, the objective seriousness of the offences committed, the indicative sentences, the maximum penalties of 5 years and the lack of any applicable standard non-parole period.

6. Similarly, although the sentencing judge took into account the sentence imposed on 23 September 2016, the resulting effective sentence of just over 10 years, was a “crushing sentence”.

7. The sentence imposed on 23 September 2016 involved offences of indecent assault from 1971 to 1983 at the same schools in circumstances where the applicant had already served a sentence for offences that were closely related in time and character to the offences presently before the court so that regard must be had to the principle of totality (Mill v The Queen [1988] HCA 70; 166 CLR 59 at [63] citing R v Todd [1982] 2 NSWLR 517 at 519).

8. The applicant was 80 years old at the time of sentence (d.o.b. 1938). He was 78 when he entered into custody. He will not be eligible for parole before 85 and will be 88 years old at the time his sentence expires. The applicant submitted that a sentence of this magnitude was particularly onerous on a person of his age and is “crushing” in the sense that it “connotes the destruction of any reasonable expectation of a useful life after release”.

9. The applicant submitted that but for the operation of s 25AA the sentencing judge would have had to take into consideration the fact that the Parole of Prisoners Act 1966 (NSW) (repealed) was in operation at the time the offences were committed and that non-parole periods were generally in the order of one-third to half of the head sentence. In the sentence of 23 September 2016, her Honour took this into account and made a finding of special circumstances and adjusted the non-parole period to 50 per cent of the current sentence. However, the structure of the current sentence effectively negated that beneficial finding. The applicant submitted that as a result, the effective non-parole period was too severe.

Consideration

43. The principles applicable to appeals claiming manifest excess are well established. To succeed on such a ground, the applicant must show that the sentence was “unreasonable” or “plainly unjust” (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25] and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59]). Consideration of whether a sentence is unreasonable or plainly unjust is undertaken against a background where there is no single correct sentence and where sentencing is not just a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features (Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [34]).

44. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle and this Court will not interfere in a sentence merely because it might have exercised its discretion differently (Markarian at [28]). As Hayne J observed in AB v The Queen [1999] HCA 46; 198 CLR 111 at [128] “there will be a range of possible sentences that could be imposed without error”.

45. All of the matters which the applicant relied upon as combining to demonstrate that the sentence imposed on him was unreasonable and unjust were specifically considered by the sentencing judge. This was not a case where her Honour failed to take into account a relevant consideration. Having identified the particular factor, her Honour in the exercise of her discretion took it into account and ultimately formulated the sentence imposed. This was a purely discretionary exercise in relation to issues on which minds might differ. Just because this Court might have reached a different conclusion, does not establish any error in the sentencing process.

46. Importantly, her Honour appreciated the wide spectrum of offending which was covered by the now repealed s 81 of the Crimes Act. Her Honour appreciated that although s 25AA allowed a sentencing judge to have regard to current sentencing practice, other restraints were operative such as the maximum penalty and the absence of any non-parole period.

47. Most particularly, her Honour was very conscious of the principles of totality and accumulation. Her Honour well understood that given the age and health of the applicant, care had to be taken not to make the total effective sentence “crushing”. In other words, all of the specific matters identified by the applicant were individually and collectively taken into account by her Honour.

48. A fair reading of her Honour’s judgment as a whole reveals an approach that gave effect to the instinctive synthesis that was required in the exercise of the sentencing discretion.

49. Her Honour was conscious of the effect of the sentence imposed in September 2016 and of the need to make the sentence to be imposed partially concurrent with it. The extent of the concurrency was an entirely discretionary matter. Questions of accumulation and concurrence are intuitive and involve the exercise of a discretion about which opinions may differ but in respect of which the assessment could not be said to be wrong (Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [64]). This Court will be slow to interfere with the exercise of such a discretion (Burgess v R [2019] NSWCCA 13 at [39]).

50. There was no error in the accumulation in the present case. Each of the counts, both in relation to the present offending and the previous offending, related to separate victims. The offending was not restricted to a narrow timeframe. There were numerous uncharged instances which were relevant as context even though they did not attract a separate penalty.

51. When consideration is given to the total criminality involved, it can be seen that the applicant offended against 27 students over a 12 year period. Error has not been identified in her Honour allowing a substantial degree of accumulation between the two sentences.

52. Other relevant considerations were as follows:

1. Although the objective seriousness of each offence was in most cases assessed at the lower end of criminality for that offence, every case was itself serious as it involved the applicant exploiting the youth of the complainants and his position of trust and authority over them.

2. Given the nature of the offending, the sentencing exercise required that emphasis be given to general deterrence.

3. A 10 per cent discount for a plea of guilty was generous in circumstances where the applicant entered a late plea of guilty after the trial was listed to commence.

4. The applicant was found to have no remorse or insight into his offending and had taken no steps to rehabilitate himself while in prison.

5. The fact that the applicant had no prior convictions was given little weight because it allowed him to gain access to the victims and abuse them over a substantial period of time.

53. For the reasons set out above, the applicant has failed to establish manifest excess. Accordingly, the orders which I propose are:

1. Leave to appeal is granted.

2. The appeal is dismissed.

54. WALTON J: I agree with the orders proposed by Hoeben CJ at CL for the reasons given by his Honour.

55. PRICE J: I agree with Hoeben CJ at CL.

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Decision last updated: 01 November 2019