R v AJB

[2017] NSWDC 81

District Court

New South Wales

Medium Neutral Citation:	R v AJB [2017] NSWDC 81
Hearing dates:	31 March 2017
Decision date:	12 April 2017
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For Orders see [81]
Catchwords:	Historical sex offending; aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 (NSW). Parole of Prisoners’ Act 1966 (NSW) Probation and Parole Act 1983 (NSW) Sentencing Act 1989 (NSW)
Cases Cited:	AJB v R [2007] NSWCCA 51 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518 CT v R [2017] NSWCCA 15 Denham v R [2016] NSWCCA 309 KAB v R [2015] NSWCCA 55 Le v R [2017] NSWCCA 26 Magnuson v R [2013] NSWCCA 50 MPB v R [2013] NSWCCA 213 Pearce v R (1998) 194 CLR 610 R v ABS [2005] NSWCCA 225 R v AEM [2002] NSWCCA 58 R v BA [2014] NSWCCA 148 R v EGC [2005] NSWCCA 392 R v Gavel [2014] NSWCCA 56 R v MJR [2002] NSWCCA 129 R v Moon [2000] NSWCCA 534 R v Nelson [2016] NSWCCA 130 R v Roberts [2003] NSWCCA 309 R v Rosenstrauss [2012] NSWCCA 25 Wilson v R [2017 NSWCCA 41 Woodward v R [2017] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Alfred James Broatch (Offender)
Representation:	Counsel: C Curtis (Crown) M Smith (Offender)
File Number(s):	15/267458
Publication restriction:	Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 prohibiting the publication of the names of, or any information tending to identify, any of the victims herein.

REMARKS ON SENTENCE

1. The offender has pleaded guilty to the following offences on Indictment:

1. Between 1 December 1981 and 31 January 1982 at Sydney, he committed an act of indecency to a person under the age of 16 years, namely 14 years, pursuant to s 61E(2) of the Crimes Act 1900. The maximum penalty for the offence at the relevant time was a term of 2 years imprisonment.

The offender has asked that in respect of this offence, the court take into account on a Form 1, an offence pursuant to s 61E(2) of the Crimes Act, in that he did between 1 December 1981 and 31 January 1982, commit an act of indecency towards a person under the age of 16 years. The maximum penalty for the offence at the relevant time was a term of 2 years imprisonment.

2. Between 1 December 1981 and 31 January 1982 at Frenchs Forest, had sexual intercourse with a person under the age of 16 years, namely 11 years, without her consent and knowing she was not consenting, pursuant to s 61D(1) of the Crimes Act 1900. At the relevant time the maximum penalty was a term of 10 years imprisonment.

In respect of this offence, the offender has asked the court to take into account on a Form 1, an offence pursuant to s 76 of the Crimes Act1900 of assault female under the age of 16 years and commit an act of indecency. The maximum penalty at the relevant time was 6 years imprisonment.

3. Between 1 January 1981 and 31 July 1982 at Frenchs Forest, assaulted a female person under the age of 16 years, namely 11, 12 or 13 years, and, at the time of the assault, committed an act of indecency upon her. The maximum penalty at the relevant time was a term of 6 years imprisonment.

In respect of that offence, the offender has asked that the court take into account an offence on a Form 1, pursuant to s 61E(1) of the Crimes Act 1900 of assault female under 16 years of age and commit act of indecency. The maximum penalty at the relevant time was a term of 6 years imprisonment.

4. Between 5 March 1984 and 4 March 1988 at Sydney, did commit an act of indecency towards a person under the age of 16 years, namely, 11, 12, 13 or 14 years, pursuant to s 61E(2) of the Crimes Act 1900. The maximum penalty at the relevant time was a term of 2 years imprisonment.

5. Between 15 March 1987 and 14 March 1991 at Frenchs Forest, did commit an act of indecency towards a person under the age of 16 years, namely, 7, 8, 9 or 10 years, and who was under his authority, pursuant to s 61E(2A) of the Crimes Act 1900. The maximum penalty at the relevant time was a term of imprisonment of 4 years.

6. Between 1 September 1993 and 1 April 1994 at Frenchs Forest, committed an act of indecency towards a person under the age of 16 years, namely, 13 or 14 years, in circumstances of aggravation, namely, that the person was under his authority, pursuant to s 61O(1) of the Crimes Act 1900. The maximum penalty at the relevant time was a term of imprisonment of 5 years.

7. Between 1 January 2002 and 31 December 2002 at Frenchs Forest, committed an act of indecency towards a person above the age of 16 years, pursuant to s 61N(2) of the Crimes Act 1900. The maximum penalty at the relevant time was a term of 18 months imprisonment.

2. The offender was committed for trial on 23 February 2016, and entered a plea of guilty upon arraignment on 14 October 2016 to each of the charges. The trial was thereafter vacated.

The sentence hearing

3. The sentence hearing took place on 31 March 2017. The Crown Sentence Summary became Ex A. The offender had no prior criminal antecedents.

4. A fair summary of the Agreed Facts contained in Ex A is as follows. The offender married on 24 June 1978 and there are three children of that marriage. The offender has three siblings, and his wife four. In the late 1970’s and 1980’s, the offender and his wife and children would often come together for holidays and celebrations with their extended family. The offender’s family lived at Frenchs Forest and during the same time period, many of the neighbourhood children who were friends of the offender’s children, would often visit the family home. It was the offender’s habit, on many occasions, to walk around the family home naked or wrapped in a towel.

5. Count 1 – During the Christmas holiday period of December 1981 to January 1982, the offender’s family had a visit from their relatives. On an occasion during this visit, the offender’s two nieces were in a car with him at night. The offender was driving and one of the nieces (“SO”) was in the front passenger seat. Whilst driving, the offender took his penis out of his shorts and said to her, “touch it”.

6. Count 1, Form 1 - SO, instead, looked out the window. The offender told her that her sister ‘did it” and that “she did not care”, to which SO replied, “No I’ll tell Dad”. The offender then laughed and said, “Yeah do tell them”.

7. Count 2 - During the 1981/1982 visit, on an occasion the offender asked his niece (“EO”) to go to the last bedroom where her infant brother was asleep on a mattress. EO knelt next to her brother’s mattress to check on him. The offender moved next to her and moved her underwear aside, and then performed oral sex on her, licking her vagina in a back and forth motion. She was 11 years old at the time.

8. Count 2, Form 1 – During the Christmas holiday period of December 1980 to January 1981, the offender asked EO to go under the family home to a “dug out”, where the offender kept tools, to see a funnel web spider, which was in a jar. EO went with him under the house, and whilst there, the offender took his erect penis out of his shorts and encouraged his niece to touch it. He told her that his wife did not show him any affection. He then took hold of his niece’s hand, moved her hand onto his penis, while he masturbated his penis. That niece recalls the offender put her hand onto his penis on other occasions during this time period.

9. During the same time period, on another occasion, that niece walked into the master bedroom, and the offender grabbed and hugged her tight around the waist. The niece felt his erect penis against her “bum or upper backside” area. During the following Christmas holiday period of December 1982 to January 1983, the offender and his family visited their relatives in Adelaide, and during that visit, the same niece recalled the offender putting her hand onto his penis and masturbating on several occasions.

10. Count 3 – In the first half of 1982, on an occasion when family were visiting the offender’s home, another niece (“SZ”) was lying on a couch in the sunroom of that home. A number of adults were in another room watching tennis on television. The offender came into the room where SZ was, and grabbed her vaginal area (vulva, through her tracksuit trousers) and held on. The offender cupped his hand around her vulva and did not let go. SZ pushed his hand away and moved away to sit next to her mother who was watching the television.

11. Count 3 – Form 1 - In July 1982, the offender came to SZ’s family home in Turramurra. SZ was home alone at the time, and the offender and SZ sat down to have a cup of tea. While they were sitting, the offender put his right hand on her leg above her knee, and moved his hand towards her crotch. SZ pushed his hand away and stood up. He said to her, “It’s okay if I do this to you. I’m your uncle. I’m allowed to”. SZ then telephoned her mother, telling her that the offender was at their home and handed the phone to the offender. She then left the room and the offender left a short time later. About one to two months later, SZ told her mother what had happened. She was 12 or 13 years of age at the time.

12. Count 4 – On an occasion in 1985 to 1986 when the offender was driving another niece (“KD”) and her brother to his family home, after being to a swimming pool or shopping centre, KD was in the front seat of the car, and her brother was in the back seat. As the offender was driving along, KD was chatting with him, and when she looked towards him, she saw the offender’s penis protruding from the left hand side of his shorts. The offender made eye contact with her, and he “acknowledged that she had seen his penis”. KD looked out the passenger side window and ignored the offender. She was 11-13 years old at the time. At a family occasion in 1997, KD told her cousin SZ about the incident, and her cousin, the victim in Count 3, told her about the incidents that had happened between the offender and herself.

13. Count 5 – The victim in Count 5 (“RG”) was a friend of the offender’s daughter, and one of the neighbourhood children who often frequented the offender’s family home. On numerous occasions, she saw the offender sitting in the house with his genitals exposed. On occasions, she saw him touching his penis, and on numerous occasions she saw him walking around the house naked.

14. On one occasion, RG went to the local tip with the offender and two of his children. On the return journey home, he insisted that RG sit in the front seat of the car. His own children were in the back seat, and both of them fell asleep. As the offender was driving, he unzipped his shorts, took out his penis and started to masturbate. He asked RG if she wanted to touch his penis, and she said “No”. He asked again, and RG again said “No”. He then masturbated until he ejaculated. The offender then showed the ejaculate to RG and asked her if she wanted to touch it. The offender then zipped up his shorts and called out to his children, “Kids, we’re home”, and acted “as if nothing happened”. RG was eight to nine years old at the time.

15. Count 6 – The victim in Count 6 (“KM”) was also a neighbour and friendly with the offender’s daughter. On an occasion during the period September 1993 to March 1994, KM went to the offender’s home and knocked on the door. The offender opened the door, wrapped in a small towel. He told KM that his daughter was not home, but would be home soon. KM entered the home and sat on the couch to wait for the offender’s daughter. Two of the offender’s children were in the room watching television, and the offender sat on a couch facing the victim. He was holding a newspaper. He opened the towel that he was wrapped in exposing his penis and genitals to KM. He positioned the newspaper so that his children could not see his exposed penis or genitals. The offender then used his hand to stroke his penis with an “up and down motion”. His penis was erect. He masturbated for a few minutes, looking at KM the whole time. KM was scared and shocked. She left the house and ran home. She was 13 to 15 years old at the time.

16. On three other occasions, in the same time period, during the afternoon, when KM was in the lounge room at the offender’s home waiting for his daughter, he stroked his erect penis (covered by a towel) in her presence, while he looked at her from time to time. The victim disclosed what had happened, to a friend, in or around 1994/1995.

17. Count 7 – In December 2002, the adult victim (“LA”) and her husband lived nearby the offender and his family. They were neighbours, and knew the offender and his family. In the week before Christmas 2002, LA went to a neighbourhood park, which had a common boundary with her property and the offender’s property. While playing with her dog in the park, LA saw the offender, about 20 metres away, standing naked in front of his property in the middle of his driveway, using his hand to masturbate his penis “in an aggressive manner”.

18. LA yelled at the offender, “If I see you doing this again I will call the police”. She then returned to her home and told her husband what had happened. Her husband then went and spoke to the offender, and contacted the police and reported the incident. The police gave LA a number of options, one of which was to ring back if it happened again. She accepted that advice, and it did not happen again.

The offender’s evidence

19. The offender tendered a report of Dr Andrew Ellis, forensic psychiatrist, dated 7 March 2017 (Ex 1).

20. Dr Ellis noted that the offences occurred between 1982 and 2002. The victims were three of the offender’s nieces aged between 11 and 14 years, two friends of the family aged between 7 and 14 years, and an adult female neighbour aged 42 years. The offender is now 71 years of age and is retired on a Department of Veteran Affairs pension.

21. The offender has no history of psychiatric illness. He left school at 16 and became a trainee manager at Woolworths Limited, before joining the Army at age 19. He served one year in Vietnam, however, witnessed combat only from a distance. On discharge from the Army he took up work as a plumber and welder, and worked until he retired at age 65.

22. Dr Ellis recorded that the offender denied any sexual attraction to children. He described himself as “a bit of an exhibitionist”, and this behaviour had commenced after a female neighbour had once exposed herself to him from across the street. This has developed into a habit of masturbating in positions where other people may be able to see him.

23. In respect of the offences, the offender told Dr Ellis that his mother, sisters and wife had dominated him over the period of the offending. He reported masturbating to exhibitionist fantasy over that period of offending.

24. On mental state examination, the offender reported past sexual arousal and behaviour directed towards exposing his naked body or genitals to others. He denied any sexual arousal directed towards children. He showed limited insight into past offending behaviour, or his motivations to engage in this behaviour. His descriptions of past offences were limited in detail.

25. Dr Ellis opined that the offender would meet the criteria for an exhibitionist disorder. Whilst the offender reported that the behaviour he engaged in for the offence was related to his exhibitionist fantasy, rather than a specific attraction to female children, Dr Ellis was of the opinion that there was no definitive way to determine if that was the case.

26. Dr Ellis also opined that the offender met the criteria for a major depressive episode. He had shown a number of dependent and avoidant traits.

27. On assessment, pursuant to the Static 99R, an actuarial instrument for assessment of risk of sexual recidivism, the offender fell within the low risk category. The offender’s profile showed concern centred around sexual deviance and relationship dysfunction. His age and the significant passage of time since offending are moderating factors. A program of rehabilitation should address the identified factors, primarily his deviant sexual arousal pattern, plus relationship skills, together with supervisory mechanisms being put in place to reduce risks to children.

28. Dr Ellis opined that anti-depressant medication should be considered, together with a selective serotonin re-uptake inhibitor anti-depressant at higher dose for the effective treatment of his exhibitionist and other paraphilic arousal. The offender reported that he was prepared to undertake either group or individual psychological treatment for his paraphilic disorder and resultant sex offending behaviour. Dr Ellis concluded that it would be advised that he not have unsupervised contact with children.

The offender’s submissions

29. In a thorough written outline of submissions, learned Counsel for the offender submitted that the court should take into account the different sentencing regimes and standards applicable at the time of the offending. Counts 1 to 3 occurred at a time when the prevailing sentencing regime was governed by the Parole of Prisoners Act 1966 (NSW), whilst Counts 4 and 5 occurred at a time when the sentencing was undertaken in accordance with the Probation and Parole Act 1983 (NSW). The practical effect of both regimes was that where an offender was sentenced to a term of imprisonment, an offender was only required to serve somewhere between one third and one half of the overall sentence.

30. It was submitted that Count 6 occurred at a time when the Sentencing Act 1989 (NSW) was in effect. That act stipulated that in the absence of special circumstances, an offender was required to serve two thirds of their overall sentence as a non-parole period. Count 7 is the only count that occurred after the enactment of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”).

31. The offender submitted that the court should take into account the sentencing practice as at the date of the commission of each offence, when sentencing practice has moved adversely to an offender, relying on R vMJR [2002] NSWCCA 129 at [31]. In respect of serious sexual assaults, it is generally accepted that sentencing for such offences began increasing after the decision of the Court of Criminal Appeal in R vAEM [2002] NSWCCA 58.

32. It was submitted that, where no sentencing range applicable to the relevant time can be established (as was the case here), then the court should approach the sentencing process in the manner set out by Howie J in R v Roberts [2003] NSWCCA 309 at [6]:

“The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence … and be proportional to the criminality involved in the offence committed … Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of the offending and consistently with the approach adopted by sentencing courts at that time.”

33. In respect of Counts 1 to 3, the offender submitted that rather than replicate the then existing policy of the Executive Government in granting remission, the court should make a finding of special circumstances and adjust the non-parole period downwards to reflect sentencing practice at the time of the offending, namely, between one third and one half of the term, which was a ratio consistently applied by the Court of Criminal Appeal since its judgment in AJB v R [2007] NSWCCA 51.

33. The offender submitted that, where the sentencing regime moved adversely to him during the long period of time encapsulated in Count 5 on the Indictment, then the offender should be sentenced under the regime most favourable to him during that period. On that basis, both Counts 4 and 5 should be dealt with under the regime existing prior to the enactment of the Sentencing Act 1989 (NSW), namely, the Probation and Parole Act 1983 (NSW) and associated regulations. That involved applying a non-parole period between 35% and 50% of the overall sentence, which remained the norm up until 1986.

34. It was submitted on behalf of the offender that Count 6 is governed by the operation of the Sentencing Act 1989 (NSW) which provided a statutory proportion of non-parole period to head sentence, being two thirds non-parole period and one third additional term (unless special circumstances were found).

35. It was further submitted that when dealing with old offences, it was necessary to consider the range of conduct encapsulated by the statutory provision so as to determine where in the range of offences the conduct fell, relying on MPB v R [2013] NSWCCA 213. Further, pursuant to Rosenstrausserv R [2012] NSWCCA 25, the court may sentence the offender to an aggregate sentence pursuant to s 53A(1) of the CSPA.

36. In respect of the objective seriousness of the offending, the offender made the following submissions in respect of each count:

1. Count 1 – is a contravention of s 61E(2) of the Crimes Act. It attracted a maximum penalty of 2 years. The relevant age was “under 16 years” and the offence encompassed not only an act of indecency towards a complainant, but also inciting an act of indecency and committing an act of indecency with another person. The offending conduct involved the offender exposing his penis and inviting the victim, who was 15, to touch it. She refused. It was submitted that the offence was towards the bottom of the range of seriousness for offences of this type. The victim was clothed, the offender did not masturbate, the offender was clothed, and the victim did not touch the offender. Although the offence was attended by some attempt at persuasion, no threat was involved. The statutory provision accounted for complainants who are very much younger than the complainant in this case. It was submitted that the offence was opportunistic and of relatively short duration.

2. Count 2 – was submitted to be below the mid-range of objective seriousness. The maximum penalty was 10 years imprisonment and encompassed offending against children younger than 16 years. The victim was 11 years old at the time of the offence. It was submitted that the type of act amounting to sexual intercourse is a relevant factor in evaluating the objective seriousness of the offence. That act, amounting to intercourse, was an act of cunnilingus. There was no suggestion that the act was a lengthy one. It was submitted that the offence was opportunistic and not attended by any violence, did not occasion any injury, was not accompanied by any force. There was no threat, nor any direction not to tell anybody what had occurred. It was submitted that, given the type of conduct, the prevailing circumstances and the absence of aggravating features, the offence fell below the mid‑range of objective seriousness.

3. Count 3 – was a contravention of s 61E(1) of the Crimes Act. The victim in this case was 12 or 14. Although the offence involved an act of indecency upon the complainant, there was no further touching beyond the distinct act that amounted to the act of indecency, the act occurred over a short duration, there was no “skin on skin” contact, there was no force used, no threat uttered and the offence was opportunistic.

4. Count 4 – was an act of indecency towards a victim who was aged between 11 and 13 years of age. It was submitted that the only positive act on the part of the offender was that he made eye contact with the complainant. Having regard to the range of conduct encapsulated by s 61E(2) and the maximum penalty of 2 years imprisonment, it was submitted that the offence was not one where a custodial sentence is required. It was a low range of objective seriousness of offending.

5. Count 5 – was also submitted to be below the mid‑range of objective seriousness. The maximum penalty of 4 years included offences of inciting a person to an act of indecency, which would in turn encompass “skin on skin” contact. In respect of this offence, the victim was dressed, she was aged eight to nine at the time of the offence, and there is no suggestion that the offence occurred over an extended period. The offence was not attended by any threat and the offending was opportunistic.

6. Count 6 – was also towards the bottom of the range of objective seriousness for offences of its type. The complainant was between 13 and 15 years of age, and thus close to the top of the age bracket encompassed by the offence. The offending occurred only for a few minutes. The victim was dressed, there was no threat, nor was any attempt at persuasion used. The offence was opportunistic.

7. Count 7 - the offending here was of short duration and it was submitted, at the lower end on the range of objective seriousness. The victim and the offender were separated by a distance of 20 metres.

38. It was submitted that the offender was entitled to a discount on sentence in the order of 10% to 25% for his plea of guilty to each of the Counts on the Indictment. He had pleaded guilty in the District Court on the Friday of the week before his trial was due to commence. Although the plea was late, there was significant utilitarian value arising from the fact that the complainants were not required to give evidence at trial.

39. It was further submitted that the court ought take into account, to a limited degree, the offender’s prior good character. He was appearing before the court for the first time at age 71. In addition to a full working life and raising a family, he had served in the Australian Army and seen overseas service in Vietnam in a combat related role. The offender conceded that the time period over which the offending occurred lessened significantly the weight that would otherwise be afforded to good character. However, the offender was still entitled to some amelioration in the otherwise applicable penalty by reason of his good character.

40. Other subjective matters relied on by the offender related to his age. There are a number of age related medical conditions including, hypertension, high cholesterol, reflux, sleep apnoea and heart disease. It was not submitted that these health matters would make his time in custody more burdensome. It was submitted that the offender had been diagnosed by Dr Ellis as suffering from an Exhibitionist Disorder, and presently met the criteria for a Major Depressive Disorder. Although he had limited insight into his behaviour, the offender had indicated a willingness to undergo treatment, and his last offence had occurred over 14 years ago. The offender’s last offence involving a child occurred 23 years ago. In those circumstances, it was submitted that the offender had reasonable prospects for rehabilitation.

41. It was further submitted that the offender was entitled to a finding of special circumstances, so that his non-parole period can be adjusted to reflect the relevant sentencing practices in force at the time of his offending.

42. In his oral submissions, learned Counsel for the offender conceded that the s 5 threshold had been met. The court would apply the totality principle in sentencing and s 53A was available to impose an aggregate sentence. It was further submitted that Counts 6 and 7 would not otherwise require the imposition of a full time custodial sentence, and this would ameliorate any difficulty involved in applying s 53A.

43. Factually, the most serious offending comprised Count 2, which could be characterised as below mid-range of objective seriousness. Whilst there was no hierarchy of offending conduct involving sexual intercourse offences, the nature of the conduct here was that it was an opportunistic act over a short duration of time, which should be taken into account.

44. As to special circumstances, in oral submissions, Counsel for the offender submitted that there could be no dispute that special circumstances applied here, that it was almost “axiomatic” in this case.

The Crown submissions

45. The Crown relied on a written outline of sentencing submissions. The Crown submitted that when sentencing for historical offences, the following general principles applied:

1. The most important guide is the applicable maximum penalty which must be considered against the range of conduct that fell within the relevant provision, and the objective gravity of the offending in question, relying on MPB v R, supra; Magnuson v R [2013] NSWCCA 50.

2. It is necessary to take into account the sentencing patterns that existed at the time the offences were committed, where such patterns have moved adversely to the offender, to the extent that such patterns are able to be discerned. However, “a sentencing judge should take into account that even when dealing with old offences, a court must impose sentences that adequately reflect the criminality of an offence regardless of when the offences were committed”, relying on CT v R [2017] NSWCCA 15 at [52].

3. The court can take into account events occurring after the offence, when considering issues of specific deterrence and rehabilitation.

4. When considering a non-parole period, the court must apply s 44 of the CSPA 1999 before the 2002 amendments. The court must impose the total term before the non-parole period. The statutory ratio applicable is that the non-parole period is three-quarters of the total term.

5. Although the 2002 Act provides the applicable statutory ratio, the court must take into account contemporary sentencing practices regarding the setting of the non‑parole period when considering the issue of special circumstances.

46. The Crown submitted that the onus is on the offender to establish the sentencing practice at the relevant time, if it is contended that sentencing practice has moved adversely to him. In respect of Counts 1 to 3, offending which had occurred in the early 1980’s, a sentencing pattern was established for sexual offences against children, namely, that sentences were more lenient than they are now. From 1983 to 1989, the court had the power to set a non-parole period, but there was no statutory ratio. From 1989, the standard ratio was that the non-parole period was three-quarters of the total term. For offences that occurred in the early 1980’s, the non-parole period was commonly one-third to one-half of the head sentence. In Denham v R [2016] NSWCCA 309, it was accepted that until 1986 the non-parole period was 35 to 50% of the total term.

47. In respect of Counts 4 to 6, which occurred in the mid to late 1980’s until the early 1990’s, the Crown submitted that, relying on Magnuson v R, supra, sentences for offences against children have increased over the past decades. In CT v R, supra, the Crown submitted that the court did not accept that by the late 1980’s non-parole periods necessarily tended to be within 35 to 50% of the total term. It was noted in that case, that non-parole periods were between 50 to 60% of the total term, whereas prior to 1986, the non‑parole period had tended to be 35 to 50%.

48. The Crown made the following submissions in respect of the objective seriousness of the offending on each count:

1. Count 1 – The Crown submitted that the objective seriousness of that offence was around the “mid-range”, having regard to the conduct covered by s 61E(2). The Crown submitted that a relevant consideration here was the following aggravating factor:

• Pursuant to s 21A(2)(k) – abuse of position of trust/authority, in that the girls were in his care and he was their uncle.

Form 1 attached to Count 1 – offence pursuant to s 61E(2), where the offender told SO to “touch it” (Count 1), he then said, ‘EO does it. She doesn’t mind, she doesn’t care” (In EO’s presence). The Crown submitted that the objective seriousness was “around the mid‑range”, having regard to the conduct covered by s 61E(2).

2. In respect of Count 2, being an offence pursuant to s 61D(1), the sexual intercourse without consent with a person less than 16 years, namely, 11 years, the Crown submitted that the objective seriousness of the offending was high. Relevant considerations were the abuse of the offender’s position of trust (he was her uncle), and the vulnerability of the victim EO, in that her age was significantly lower than 16 years.

Form 1 attached to Count 2 – was an offence pursuant to s 76, where the offender took hold of the victim’s hand and moved her hand onto his penis while he masturbated. This also involved an abuse of a position of trust and vulnerability of the victim, given her age. Whilst the Crown conceded that this offence fell towards the lower end of the range of objective seriousness for offences covered by s 76, it was not at the bottom of the range.

3. Count 3 – was an offence pursuant to s 61E(1)/s 76, where the offender had cupped his hand around the victim’s vagina/vulva on the outside of her tracksuit pants. Given that s 76 encompassed acts that would now be regarded as sexual intercourse at law, the Crown submitted that this offence fell towards the lower end of the range of objective seriousness.

Form 1 attached to Count 3 – involved an offence pursuant to s 61E(1)/s76, where the offender placed his hand on the victim’s leg, above her knee, and moved it up towards her crotch, before the victim grabbed his hand and pushed it away. This also involved abuse of a position of trust/authority (being the victim’s uncle), and also the offence occurred in the victim’s home.

The Crown submitted that this offence was towards the lower end of the range of objective seriousness, however, it was not at the bottom of the range.

4. Count 4 – involved an offence pursuant to s 61E(2), where the offender was driving the victim and her brother home. His penis was protruding from his shorts and he made eye contact with the victim to acknowledge that she had seen it. The Crown submitted that this involved an abuse of a position of trust/authority, and that the victim was in his care, and he was her uncle. The Crown submitted that this offence was “around the mid‑range of objective seriousness”, having regard to the type of conduct covered by s 61E(2). It was submitted that although the act was not itself extremely serious, it was still within the mid-range of acts contemplated by s 61E(2).

5. Count 5 – was an offence pursuant to s 61E(2A), involving the offender masturbating in front of the victim and asking if she wanted to touch his penis. He then ejaculated and asked if she wanted to touch the ejaculate. The Crown submitted that this offence was of high objective seriousness, by reference to the type of conduct covered by s 61E(2A), particularly given the vulnerability of the victim (she was 8 or 9 years and significantly less than 16 years). The Crown also relied on KAB v R [2015] NSWCCA 55, where the Court said that ejaculation into a victim’s body “is an act which adds to the degradation of the victim, and can heighten the overall seriousness of the crime”. The Crown submitted that ejaculation escalated the seriousness of this act of indecency.

6. Count 6 -The offence pursuant to s 61O(1), involved the offender exposing his penis to the victim, and masturbating in front of her for a few minutes. The Crown submitted that this offence was around the mid-range of objective seriousness. It lasted for several minutes and involved, not just exposure of his penis, but masturbation.

7. Count 7 – involved an offence pursuant to s 61N(2), where the offender masturbated in front of the adult victim whilst naked. The Crown submitted that this offence was around the mid-range of objective seriousness for offences contemplated by s 61N(2).

49. The Crown submitted that the offender’s prior good character was of less weight than it might have been otherwise, given the number and the nature of the offences. It was clear from the Agreed Facts here, that the offences were not isolated and repeat offending in the context of sexual offences deprived an offender of a claim for leniency that might otherwise be available, relying on R v ABS [2005] NSWCCA 225.

50. The Crown submitted that the delay in sentencing here was of little consequence. The offender here had remained silent, hoping that the offences will not be discovered, and therefore a reduced sentence was inappropriate. It was further submitted that although there were no offences committed since the last offence on the Indictment, the nature of these offences is such that general deterrence and the need for denunciation reduces the significance that can be attached to rehabilitation. The offender here had escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that time.

51. The Crown submitted that the commission of an offence against young victims, even 30 years ago, should not be considered necessarily a stale crime so as to call for a measure of understanding and flexibility of approach in sentencing. The Crown therefore submitted that in order to reflect the objective seriousness of the offences, and fulfil the need for general deterrence, the offender must receive a reasonably lengthy custodial sentence.

52. In oral submissions, the Crown conceded that sentencing patterns in the early 1980’s and mid to late 1980’s were more lenient than present sentencing for sexual offences. The Crown emphasised that as far as non-parole periods are concerned, the court must apply s 44 of the CSPA before the 2002 amendments, and therefore the court must impose a total term before the non‑parole period. The statutory ratio applicable is that the non-parole period is three-quarters of the total term, subject to a finding of special circumstances.

53. In response to the offender’s submissions regarding the objective seriousness of the offence in Count 2, of having sexual intercourse without consent on an 11 year old child, the Crown referred the court to [25] of Hoeben CJ at CL’s judgment in CT v R, supra, where he referred to what MacCallum J said in R v BA [2014] NSWCCA 148 at [33]:

“An aspect of the seriousness of sexual offences committed against young children is that their youth and inexperience deprives them of the capacity to resist or protect themselves. The fact that an adult entrusted with the care of a child is able to prey upon the child’s trust and vulnerability to commit sexual offences without resort to the use of force, is hardly a mitigating factor. It speaks of a pernicious abuse of trust.”

54. The Crown submitted that the offending in respect of Count 2 was not entirely opportunistic because of the absence of the requirement of consent. The victim here was significantly younger than 16 years of age, and there was some grooming of the victim involved here, therefore there was some planning of the offending which was not entirely opportunistic, given that the offender went to get the victim to come into the bedroom.

55. In respect of Counts 6 and 7, the Crown conceded that the offending conduct would not usually warrant a full time custodial sentence. In respect of the other counts, it was submitted that the range of conduct here fell within the mid‑range of objective seriousness.

56. In respect of the offender’s subjective case, the Crown submitted that the psychiatrist report established that the offender had limited insight into his offending. A risk factor here was that the psychiatrist’s opinion that there should be no unsupervised contact with children. The offender had shown no remorse and there were, therefore, poor prospects for his rehabilitation.

Submissions in reply

57. Learned Counsel for the offender noted the aggravating features pursuant to s 21A relied on by the Crown, submitting they operated retrospectively. It was conceded that the court would have regard to the offender’s abuse of trust in assessing the objective seriousness of the offending. Here, in respect of those offences where the parents of the victims were either present or within the household, a query arose as to whether there was in fact an abuse of a position of trust or authority on the facts.

57. In a further oral submission, the Crown submitted that where other adults were present, the Crown relied on abuse of position of trust, not on an abuse of a position of authority, in assessing the objective seriousness of the offending.

Determination

59. Notwithstanding that the offender is being sentenced for historical sex offences in respect of Counts 1 to 6, it is apposite to set out the purposes of sentencing contained in s 3A of the CSPA. They are as follows:

“(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

60. A chronological listing of the offences establishes that Counts 1 to 3 occurred under the regime of the Parole of Prisoners’ Act 1966 (NSW). There was no provision thereunder for a proportional relationship between the non-parole period and parole period, rather, a system of remission operated by regulation such that the head sentence could be reduced by executive act up to a half.

61. Counts 4 and 5 were subject to the regime governed by the Probation and Parole Act 1983 and associated regulations. That Act provided for the system of remissions to be applied to the non-parole period, as well as the head sentence. In Denham v R, supra, at [49], the Court of Criminal Appeal held that non-parole periods between 35% and 50% of the overall sentence were the norm through the period 1984 to 1987.

62. Count 6 is governed by the operation of the Sentencing Act 1989 (NSW) that provided for a statutory proportion of non-parole period to head sentence, being two-thirds non-parole period and one-third additional term, unless special circumstances were found.

63. Count 7, which occurred in 2002, is subject to the CSPA.

64. It was common ground that no pattern of sentencing practice by the courts has been established for me to consider in respect of the subject offences. In those circumstances, for the correct approach in sentencing for historical sex offences where over time, the penalties for such offences have been increased by the legislature, see R v Moon [2000] NSWCCA 534 at [65] to [71]. Latham J summarised that approach in R v EGC [2005] NSWCCA 392 at [41] as follows:

“In the absence of relevant statistical material, the approach set out by Howie J in Moon at [67)] – [71]; is the correct one; R v MJR [2000] 54 NSWLR 368 at 384. In summary, a court must have regard to the maximum penalty for the offence at the time the offence was committed, and the court must consider where in the range of conduct covered by the offence the particular criminal conduct committed by the offender falls. In undertaking that exercise, the subjective features of the offender ought not overshadow the objective gravity of the offence; Dodd (1991) 57 A Crim R 549.”

65. These passages were cited with approval by the Court of Criminal Appeal in Woodward v R [2017] NSWCCA 44.

66. It is clear, and it was not in issue, that sentencing practice has moved adversely to an offender in respect of the subject offences, and therefore s 19 of the CSPA mandates that the court have regard to sentencing practice as at the date of the commission of the offence. The court must also be mindful that a non-parole period represents an appropriate minimum period of imprisonment required to be served by an offender, having regard to all of the purposes of justice – see Magnuson, supra. The court must impose sentences that adequately reflect the criminality of an offence, regardless of when the offences were committed – see CT v R, supra, at [52].

67. Having regard to those principles, I assess the objective seriousness of the offences here, as measured against the relevant applicable maximum penalty, as follows:

1. Count 1 – the offending conduct here involved the offender taking his penis out of his shorts and telling the 14 year old victim, his niece, to “touch it”. The maximum penalty pursuant to s 61E(2) was a term of 2 years imprisonment. The Crown submitted that the objective seriousness of the offence was “around the mid-range”, having regard to the abuse by the offender of his position of trust, the victim being in his care, and he was her uncle. The offender submitted that the offending was within the low range for an offence pursuant to s 61E(2).

I find that this offending was in the low range of offending conduct pursuant to s 61E(2), half way between the lowest end of the range and mid-range.

2. The offending conduct in Count 2 was sexual intercourse with a person less than 16 years, pursuant to s 61D(1) of the Crimes Act, involving cunnilingus on his niece. The Crown submitted that the objective seriousness of this offence was high, having regard to the offender’s abuse of his position of trust as her uncle, and the vulnerability of the victim, she being 11 years of age at the time. The offender submitted this conduct was below mid-range for an offence pursuant to s 61D(1).

I find that this conduct was within the mid-range for an offence pursuant to s 61D(1). The victim was significantly lower than the cut-off age of 16 years for the offence, and the offender had persuaded the victim to accompany him because of his relationship of uncle. Whilst it is appropriate to have regard to the form of sexual intercourse that took place, it is wrong to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness involved in the offending is to be determined according to the entirety of the facts and the circumstances of the case in question – see R v Gavel [2014] NSWCCA 56 at [97]. Here, there was some limited grooming of the victim. Further, I reject the offender’s submission that the offending was opportunistic. I find that here, having regard to all of the circumstances, the objective seriousness of the offending fell within the mid-range of objective seriousness for an offence pursuant to s 61D(1), but at the lower end of that mid-range.

3. Count 3 – the Crown conceded that the offending conduct of cupping his hand around the victim’s vagina, (who was 12 or 13 years), on the outside of her tracksuit pants, fell towards the lower end of the range of objective seriousness, pursuant to s 61E(1)/s 76. This was not in issue between the parties, and I so find.

4. Count 4 - The offending conduct here was taking his penis from his shorts and making eye contact with the victim, his niece (who was 11, 12 or 13 years), pursuant to s 61E(2), with a maximum penalty of 6 years. The Crown submitted that although the act itself was not extremely serious, the conduct was still within the mid-range of acts contemplated by s 61E(2). The offender submitted that the objective seriousness of the offending here was within the low range of objective seriousness.

I find that the objective seriousness of the offence was within the low range, but towards the middle of that range, given the abuse of trust involved, given that the offender was her uncle.

5. Count 5 – the offending conduct was constituted by the offender masturbating in front of the victim who was eight or nine years at the time. The offence pursuant to s 61E(2A) carried a maximum penalty of 4 years. The conduct included asking the victim whether she wanted to touch his penis, and then the offender ejaculated and asked her if she wanted to touch the ejaculate. The Crown submitted that the offending conduct was of high objective seriousness, by reference to the type of conduct covered by s 61E(2A), and relying on KAB v R, supra. The offender submitted that the conduct fell below the mid-range for such conduct.

I do not accept the Crown’s submission relying on KAB v R here, as ejaculation did not occur inside the victim’s body. The fact of ejaculation, together with the offender’s invitation to the victim to touch it, adds to the objective seriousness of the offending conduct. I find that the conduct was just below the mid-range for offending conduct pursuant to s 61E(2A), but still constituted most serious conduct.

6. Count 6 – involved the offender exposing his penis to a 13 or 14 year old victim, and masturbating in front of her for a few minutes. The offence was pursuant to s 61O(1), and carried a maximum penalty of 5 years. The Crown submitted that the objective seriousness of the offending was mid-range, having regard to the offence lasting for several minutes and involving not just exposure of his penis, but masturbation. The offender submitted that this offending conduct fell within the low range of objective seriousness of offending pursuant to s 61O(1).

I find that the offending was within the low range for an offence pursuant to s 61O(1), but towards the middle of that range between low and mid-range.

7. Count 7 – the offending conduct of masturbating in front of an adult victim whilst naked, was pursuant to s 61N(2). It carried a maximum penalty of 18 months imprisonment. The Crown submitted that the objective seriousness of the offence was “around the mid-range”, whilst the offender submitted that it was within the low range.

I find that the objective seriousness of the offending in respect of this offence was within the low range of objective seriousness of offending for conduct covered by s 61N(2) of the Crimes Act.

68. The offender has asked to be taken into account, three offences on a Form 1, in respect of Counts 1, 2 and 3. In respect of each of the three offences on the Form 1, the offender has admitted his guilt. The Form 1 in respect of Count 1, involved an offence pursuant to s 61E(2) and carried a maximum penalty of 2 years. The Crown submitted that the objective seriousness of that offence was around the mid-range for an offence pursuant to s 61E(2). Consistent with my finding in respect of Count 1, I find the objective seriousness of this offence was within the low range of objective seriousness for an offence pursuant to s 61E(2).

69. The offending conduct in respect of the Form 1 attached to Count 2 was an offence pursuant to s 76 (indecent assault on a female less than 16 years). The maximum penalty was a term of 6 years imprisonment. The offending conduct involved the offender taking the victim’s hand and moving her hand onto his penis while he masturbated. The Crown submitted that the offending conduct fell towards the lower end of the range of objective seriousness covered by s 76, and I so find. Having regard to the aggravating factors of abuse of trust, and the vulnerability of the victim, it was not, however, the bottom of the range.

70. In respect to the Form 1 attached to Count 3, the offence was pursuant to s 61E(1)/s 76 (indecent assault on a person/female person less than 16 years of age). The maximum penalty was a term of imprisonment of 6 years. This involved the offender placing his hand on the victim’s leg, above her knee, and moving it towards her crotch, before the victim grabbed his hand and pushed it away. The Crown submitted that this was at the lower end of the range of objective seriousness for an offence pursuant to s 61E(1)/s 76, and I so find. However, given the aggravating factors, it was not at the bottom of the range.

71. In Le v R [2017] NSWCCA 26, the Court of Criminal Appeal applied the principles set out in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518:

“18 A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (see e.g. The Queen v White (1981) 28 SASR 9 at 13; Murrell v The Queen [1985] FCA 14; (1985) 4 FCR 168 at 179 per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.)

…

42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.”

72. In applying the principles set out, the offences on each Form 1 will be taken into account in sentencing in respect of Counts 1, 2 and 3 so as to impose a longer sentence than otherwise would have been imposed.

73. General deterrence is clearly important in the sentencing process here. A clear message must be sent by the court to like-minded people in the community that sexual offending against children who do not have the capacity to resist or protect themselves, particularly when that offending involves a betrayal of trust, will be severely punished by the courts. Specific deterrence is of much lesser weight here, given the age of the offender, and the fact that some 15 years have passed since his last offence.

74. The offender has submitted that he is entitled to a significant utilitarian discount, having regard to his plea of guilty to each of the offences. The complainants were not required to give evidence at trial, however, the plea was entered on the Friday before the week his trial was due to commence. In those circumstances, he is entitled to a 15% utilitarian discount on sentence.

75. It was submitted on behalf of the offender that s 21A(5) of the CSPA is not engaged in this case, and the court should take into account (to a limited degree) the offender’s prior good character. He is now 71 years of age and has no criminal antecedents. It is relevant to take into account that the offender was a person of good character at the time of the commission of the first of the offences. Thereafter, he could not be regarded as a person of good character – see MPB v R, supra, at [126]. As held by the court in CT v R, supra, the weight to be given to good character is diminished to a degree by reason of the number and nature of the offences committed by the offender, and the fact that he embarked on a course of offending from the early 1980’s until 2002. Also relevant is the fact that having sexually assaulted a number of victims over many years, he escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that time. Nor should the offender’s sexual offending on young victims be considered a stale crime – see Wilson v R [2017] NSWCCA 41.

76. There are a number of subjective factors to take into account here, as set out in the report of Dr Ellis, and referred to above. The offender is aged 71 years and had, after his service in the Army, worked for the whole of his adult life. He has a number of medical conditions as set out above. Notwithstanding his limited insight into his offending as outlined by Dr Ellis, he has expressed willingness to undergo treatment, both in custody and following his release, and therefore I find that there are real prospects for his rehabilitation.

77. I take into account the age of the offender, his medical conditions referred to above, his willingness to undergo rehabilitation, and the fact that at the time the offences were committed, non-parole periods imposed by the courts were usually in the order of one-third to one-half of the head sentence (see MPB v R), supra, per Garling J at [93]; and Woodward v R, supra, at [93]). I therefore find that there are special circumstances pursuant to s 44(2) of the CSPA, which would warrant a variation of the proportion of the non-parole period to the head sentence in this case.

78. This is an appropriate matter for an aggregate sentence to be imposed pursuant to s 53A(1) of the CSPA – see Rosenstrauss v R, supra. In doing so, I am required to set out the indicative sentences that I would have imposed otherwise. The indicative sentences are as follows:

Count 1 – a term of imprisonment of 4 months.

Count 2 – a term of imprisonment of 3 years and 4 months.

Count 3 – a term of imprisonment of 3 months.

Count 4 – a term of imprisonment of 3 months.

Count 5 – a term of imprisonment of 12 months.

Count 6 – a term of imprisonment of 6 months.

Count 7 – a term of imprisonment of 3 months.

79. In giving the indicative sentences, I have taken into account the matters on the Form 1’s in relation to Counts 1, 2 and 3, which much necessarily involve some accumulation of sentence in respect of each count. I have certified each Form 1. I also reject the submission made on behalf of the offender, that in respect of Counts 6 and 7, a custodial sentence would not have been imposed. It would have, in my view, because of the number of previous offences, which also adds to the seriousness of the offending.

80. Having regard to the sentencing principles for historical sex offences set out above, and also to the principles of totality and proportionality set out in Pearce v R (1998) 194 CLR 610 at [45], I intend to sentence the offender to a term of imprisonment of 4 years, and a non-parole period of 2 years.

Orders

81. I therefore order as follows:

1. You are convicted of the following offences:

Count 1 – an offence pursuant to s 61E(2) of committing an act of indecency towards a person under the age of 16 years.

Count 2 – an offence pursuant to s 61D(1) of sexual intercourse without consent with a person less than 16 years.

Count 3 – an offence pursuant to s 61E(1)/s 76 being indecent assault on a female person less than 16 years.

Count 4 – an offence pursuant to s 61E(2), being an act of indecency to a person under the age of 16 years.

Count 5 – an offence pursuant to s 61E(2A), of indecent assault on a person less than 16 years, and under authority.

Count 6 – an offence pursuant to s 61O(1), of indecent assault on a person less than 16 years and under authority.

Count 7 – an offence pursuant to s 61N(2), being an act of indecency towards a person older than 16 years of age.

2. I sentence you to a non-parole period of 2 years, to commence on 12 April 2017 and to terminate on 11 April 2019.

3. I sentence you to a balance of term of imprisonment of 2 years, to commence on 12 April 2019, and to terminate on 11 April 2021.

82. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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Decision last updated: 12 April 2017