R v Alan James Pollock

[2014] NSWDC 236

District Court

New South Wales

Medium Neutral Citation:	R v Alan James Pollock [2014] NSWDC 236
Hearing dates:	4 - 5 June 2014, 10 - 13 June 2014, and 14 November 2014
Decision date:	12 December 2014
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. Aggregated terms of Imprisonment. For Orders see [66]
Catchwords:	Sentencing. Sex offences on school children. Aggregation of penalties.
Legislation Cited:	Court Suppression & Non Publication Orders Act 2010 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1986
Cases Cited:	Cahadi v The Queen (2007) 168 A Crim R 41 Einfeld v R [2002] NSWCCA 87 Holyoak v R (1995) 82 ACrimR 502 MBP v R [2013] NSWCCA 213 Pearce v The Queen (1998) 194 CLR 610 R v ABS [2005] NSWCCA 255 R v Boulad [2005] NSWCCA 289 R v Burchell (1987) 34 ACrimR 148 R v Dent NSWCCA 24 March 1991 R v Fisher (1989) 40 AcrimR 442 R v Gittany (No. 5) [2014] NSWSC 49 R v Harmata (2013) NSWDC 214 R v Levi NSWCCA 15 May 1997, unreported R v MJR (2002) 54 NSWLR 368 R v MJR [2002] NSWCCA 129 R v Rae [2013] NSWCCA 9 R v Ryan (2001) 206 CLR 287 Simpson v R [2014] NSWCCA 23
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Alan James Pollock (Offender)
Representation:	S Morkaya (Crown) T Edwards (Offender)
File Number(s):	13/94035 12/352539 13/86266 13/86206 13/38083 13/247286 13/38085 12/352536
Publication restriction:	Order Pursuant to s7 of the Court Suppression & Non Publication Orders Act 2010 in respect of all victims' names in all related matters and order that this remain extant until further order.

REMARKS ON SENTENCE

1. The offender pleaded guilty to the following four Counts on an Indictment during the trial before me at Parramatta District Court on 13 June 2014:

(1) Count 4 - Attempt indecent assault on male (JS) pursuant to s 81 of the Crimes Act 1900. The maximum penalty is 5 years imprisonment.

(2) Count 5 - Indecent act with person under 16 years (SC aged 12 years) pursuant to s 61E(2A) of the Crimes Act 1900. The maximum penalty is 4 years imprisonment.

(3) Count 6 - Indecent act with person under 16 years (SC) pursuant to s 61E(2A) of the Crimes Act 1900. The maximum penalty is 4 years imprisonment.

(4)   Count 7 - Sexual intercourse with person under 16 years (SC) pursuant to 61D(1A) of the Crimes Act 1900. The maximum penalty is 12 years imprisonment.

1. On 1 September 2014 the offender pleaded guilty to the following five Counts on an Indictment ("the second Indictment") before Judge Sides QC at the Parramatta District Court. The offences are as follows:

(1) Count 1 - Assault and act of indecency (AD aged under 16 years) pursuant to s 61E(1) of the Crimes Act 1900. The maximum penalty is 6 years imprisonment.

(2) Count 2 - Assault and act of indecency (AH aged under 16 years) pursuant to s 61E(1) of the Crimes Act 1900. The maximum penalty is 6 years imprisonment.

(3) Count 3 - Assault with act of indecency (MF aged under 16 years) pursuant to s 61E(1) of the Crimes Act 1900. The maximum penalty is 6 years imprisonment.

(4) Count 4 - Assault with act of indecency (MF aged under 16 years) pursuant to s 61E(1) of the Crimes Act 1900. The maximum penalty is 6 years imprisonment.

(5) Count 5 - Indecent assault by person in authority (JW aged under 16 years) pursuant to s 61E(1A) of the Crimes Act 1900. The maximum penalty is 6 years imprisonment.

1. In addition to those offences, the offender has asked for the following charges to be dealt on a Form 1:

(1)   Form 1 in respect of ME - to be taken into account in respect of Count 4 on the second Indictment - did commit an act of indecency upon a child under 16 years of age (ME) pursuant to 61E(1) of the Crimes Act 1900.

(2)   Form 1 in respect of RW - to be taken into account in respect of Count 5 on the second Indictment - indecent assault by person of authority (RW) pursuant to 61E(1A) of the Crimes Act 1900.

1. The offender was arrested on 12 November 2012. He has been in custody since 1 September 2014. He has therefore spent 3 months and 12 days in custody at the time of sentence.

Circumstances of the Offending

1. The Crown bundle on sentence (exhibit A) comprised a statement of admitted facts in respect of Counts 4-7 of the Indictment to which the offender pleaded guilty during the trial before me. Those facts may be summarised as follows:

(1)   In respect of Count 4 on the Indictment, the victim JS was a student at Patrician Brothers College between 1977 and 1982. From age 11 in 1977 until 1982, the victim would attend the Memorial Hall at St Marys with his parents on evenings when a game known as Housie was played. The offender assisted in the organisation of the games. The victim would assist in serving tea, coffee and snacks to those participating. Between August 1981 and April 1982 the offender would drive the victim to and from the hall to participate in his duties at Housie. On the occasion the subject of Count 4 in the Indictment, the offender drove the victim home after Housie. He stopped the vehicle at Marayong Park and the offender's pants were undone. The offender reached over and grabbed the victim's right arm and pulled it towards the offender's genital area and said to the victim "What can you do with this?" The victim pulled his arm away and unlocked the passenger door before running home. This is the conduct the subject of Count 4 in the Indictment. It is not in issue that this was not an isolated incident. Other counts on the Indictment relating to this victim were relevant in terms of placing this offence in context.

(2)   Counts 5, 6 and 7 on the Indictment concerned the victim SC. He was a student at Patrician Brothers College Blacktown between 1985 and 1990. He became known to the offender who was involved in coaching cricket and football teams at the school.

(3)   On 20 September 1987 the offender took the victim to the Sydney Cricket Ground to watch a game of Rugby League, with the victim's parents' consent. At the end of the game the offender drove the victim to the Kings Cross area and on a number of occasions stopped the car and had conversations of a sexual nature with a number of women who were on the side of the road. The offender also took the victim to a place known as "The Wall" and told the victim that it was where men who liked boys sometimes went to have sex. The offender told the victim that he would teach him about sex. The victim asked to be taken home but the offender continued to stop and have further conversations of a sexual nature with women on the side of the road. The victim started to cry and wanted to get out of the car and was told by the offender that there were secret locks on the car and that he couldn't get out. The offender offered to cuddle the complainant, which offer was declined. The offender then drove to a vacant lot on Cobram Street Marayong, adjacent to the victim's family's home on Stutt Street Marayong. When he stopped the car the offender said to the victim "Do you know what an erection is?" and when the victim said "No", the offender said "I'll show you".

(4)   The offender pulled down his pants and the victim saw the offender's erect penis. The offender started to masturbate and said to the victim "Come over here". The victim said "No I want to go home". The offender then reached over and grabbed hold of the victim's wrist and said "You can't get out because I have locked the doors". This is the conduct the subject of Count 5 in the Indictment.

(5)   The offender then pulled the victim towards him by the wrist. The offender forcibly put the victim's hand on his penis and forced his wrist up and down his penis, masturbating the offender, who started to moan. This is the conduct the subject of Count 6 in the Indictment.

(6)   The offender then pushed the complainant's head down on to his penis so that it was in the victim's mouth, while continuing to hold on to the back of the victim's head. The offender ejaculated in the victim's mouth. The offender asked the victim if he wanted to do the same thing to him, to which the victim said "No. I want to go home". The offender started to drive out of the vacant lot, but the victim started crying. The offender stopped the car and said to the victim "This is what sex education is like at high school. You should learn to enjoy sex as that is what people who love each other do". The offender told the victim to keep this as their secret and not tell his parents and that he would take him to the cricket if he was good. The offender and the victim sat in the car until the victim had settled down and stopped crying before the victim went home. This is the conduct the subject of Count 7 in the Indictment.

1. The agreed facts in relation to the five offences on the second Indictment may be summarised as follows:

(1)   In respect of Count 1, AD was in year 4 at St Bernadette's Primary School in 1986 and was nine years of age. The offender was a relief teacher who was employed as the victim's teacher for the entire first term. The victim had approached the offender's desk at the front of the classroom to ask for help with some work and was asked to come around the desk and stand next to the offender. She stood to his right and the offender put his right arm around her waist and pulled her close to his chair. The victim was directly behind his desk and from waist down was out of sight of the other students. The offender reached with his left hand and touched the victim on the area of her vagina, outside her clothes. He felt around her pubic area and found her pubic bone and started doing circular motions with his fingers on her vagina. Whilst he was touching her, the offender continued to ask the victim about her work. The victim grabbed the offender's hand from her waist and pulled away and walked back to her seat.

(2)   The offender was also the relief teacher of AH, the victim in respect of Count 2 on the Indictment. The offender asked the victim to come over to his desk and stand next to him. The victim did that, standing to the right of the offender, and put her work down on the offender's desk. The offender put his right arm around the victim's waist and pulled her close to his chair. Again, the victim was out of sight from other students from the waist down. The offender reached over with his left hand and touched the victim on the area of her vagina. The offender felt around her pubic area and found her pubic bone. The offender touched the victim's vagina on the outside of her school dress. Whilst doing that, the offender was looking at the victim's school work and said "You're doing a good job". The victim felt extremely uncomfortable and eventually returned to her desk.

(3)   The victim (MF) in respect of Counts 3 and 4 was in year 4 and nine years of age during 1986 when the offender was her relief teacher on a number of occasions. The victim approached the offender who was working at his desk. Again, the victim stood to the right hand side of the offender and the lower part of her body was obscured from the rest of the classroom by the offender's desk. The offender placed his right hand on her upper back and his left hand on the front of her body. Moving both of his hands at the same time, the offender felt the victim's breasts, stomach and vagina whilst simultaneously moving his right hand touching her lower back before touching her on the buttocks. Once he moved his hands down to the victim's vagina and buttocks, the offender moved his hands back up her body, touching her again on the vagina outside her clothes, the buttocks, back, stomach and breasts. The victim recalled the offender stopping moving his hands and left them in certain areas for periods of time. The victim felt troubled and confused by the actions of the offender and once he stopped touching her she returned to her desk. This was the conduct of Count 3.

(4)   On another day during 1986, the same victim (MF) was at the school with her mother on a weekend day for a fair or church activity. The offender approached her and asked her to help put some chairs up in the classroom and she went with the offender to her year 4 classroom.

(5)   The victim knelt on a desk while lifting a chair up. The offender approached her from behind and put both his hands into the rear pockets of her jeans, touching her buttocks. The offender said "You are a good girl". He left his hands in her rear jeans pockets, touching her buttocks for about two minutes. The offender then put a chocolate into one of the rear jeans pockets and left the room. The victim remained still for the entire time that the assault took place. This was the conduct the subject of Count 4.

(6)   The offender has asked that a matter on the Form 1 concerning ME be taken into account on sentencing for Count 4.

(7)   In 1986 the victim was in kindergarten and aged five. After winning a game that she played with the rest of her class mates, the offender picked the victim up with one hand on each side of her hips and placed her on his shoulders with her body at the back of his head. The offender placed his head on the inside of the victim's school dress and spun around with the victim on his shoulders. The offender placed his hands on the inner upper thigh area of the victim's legs and tilted his head backwards so that his head made contact with the victim's crotch area on top of her underwear. He rubbed that area with the back of his head. The victim felt uncomfortable and knew it felt completely different to how her dad carried her on his shoulders.

(8)   The victim in Count 5 (JW) was in year 6 in 1990 and was 11 years of age. The victim was asked to line up with other students and to approach the offender's desk so he could check their work. As she approached the offender to have her work checked, the offender placed the victim's work on a spare desk in front of him. The victim was standing between the offender's legs and both the victim and offender were looking at her work. The victim was facing away from the rest of the students who were still lined up. As the offender was checking her work, he rubbed and patted the victim's vagina and groin area with his hand on the top of her clothing. The victim recalled the rubbing and patting of her vagina was done in a gentle and comforting way, which is why she believed she did not react to it. She returned to her desk and sat down.

(9)   The offender has asked that a matter be taken into account on a Form 1 in respect of Count 5.

(10)   The victim in that matter (RW), was in year 6 and 11 years of age in 1990. On the day in question, the victim was walking towards the sick bay at the school, and she suddenly felt an arm hug her from behind. The offender stretched his left arm from the top of her left shoulder across to her right shoulder. He placed his right hand on the right hand side of the victim's lower pubic bone region, on top of her school uniform and started patting the victim. The offender said "What are you doing?" The victim said "I'm delivering newsletters Sir". The offender said "Don't strain yourself".

1. The Crown bundle contained victim impact statements from the six victims, three of which were read to the Court and one of which was shown by video link from the USA. Each of the statements was a moving testament to the life long effects of abuse suffered by children at the hands of a person into whose care they were entrusted.

1. The offender tendered the following exhibits:

(1)   Letter from the Offender dated 13 November 2014.

(2)   Character reference from the offender's wife, Loreta Pollock dated 5 November 2014.

(3)   A letter from the offender's mother dated 11 November 2014.

(4)   Undated reference from Noelene Mansour.

(5)   Letter from John Roe dated 13 November 2014.

(6)   Letter from Superpartners dated 13 November 2014.

1. The offender's statement (exhibit 1) outlined his family history. He professed to having had a great education, obtaining the Higher School Certificate in 1972 from Holy Cross College Ryde. Whilst attending Holy Cross College, he boarded with the Patrician Brothers at their residence at Wahroonga as he intended to join that order. He left after the HSC and commenced work for the State Rail Authority as a clerk. He worked there for six months and then accepted a position as a classroom teacher at a primary school at Richmond for 18 months. In 1975 and 1976 he attended the Catholic College of Education at Castle Hill for a Diploma of Teaching course, however, he only completed two years of the three year course. He then worked as a classroom teacher at a school in Windsor. In the late 1970's the offender was involved in a motor vehicle accident which was caused by him suffering an episode of epilepsy. He resigned his position and was unemployed for a number of years. He completed a certificate course to coach rugby league and became involved as a coach at St Patrick's Blacktown in the late 1980's. He also coached cricket at that school.

1. Whilst employed as a casual at St Bernadette's Primary School at Lalor Park during the 1980's, the offender lived in a religious community. He was employed full time as an ancillary staff member at that school in 1986 and resigned from the school in November 1990.

1. The offender did some community based volunteer work in the 1990's and in 1991 successfully completed a 12 months course to obtain an advanced certificate in office administration. He also completed a rugby league referees course and officiated at rugby league matches from 1991 until September 2012.

1. On 7 December 1992 he commenced full time work as a superannuation administrator with Superpartners Administration Fund. He worked there for a period of 22 years until September 2014.

1. In 2008 the offender met his wife, Loreta, in the Philippines. They were married there in December 2010 and she came to live in Australia in September 2012. They lived with the offender's mother who is aged 84. While she in good health, she is very reliant on the offender, as is his wife.

1. The offender is generally in good health but was born with Tuberous Sclerosis, a genetic disease that causes benign tumours. His current relationship with his wife is the first committed relationship that he has had. He has received strong family support from his wife and mother. His statement concludes:

"I regret my actions towards children who were under my control. I hurt every day and am sorry to each and every one of these children for the effect I've had on their lives. My behaviour has caused the end of some valuable friendships. I have no excuse for my behaviour. I can only say that I feel like I have tried to live my life very differently since I committed these offences. I intend to be a model prisoner for the duration of my sentence. I will comply with whatever I'm required to do to pay my debt to society, and am willing to undertake any sex offender's courses."

Submissions on behalf of the Crown

1. The Trial Advocate submitted that in respect of the pleas of guilty to Count 4 - 7 that were entered during the trial, those pleas were entered only after both victims had given evidence and had been cross-examined in the trial. In those circumstances, the Crown submitted that the offender was entitled to a minimal utilitarian discount on sentence in respect of each of those four offences and that a 5% discount would be appropriate. The victims still had to endure the distress of preparation for trial, giving evidence and cross-examination.

1. In respect of the pleas of guilty entered on 1 September 2014, it was submitted that they were entered on the first day of trial and therefore the appropriate range for utilitarian discount on penalty was between 10% and 15%. In this case, the Crown submitted that 10% was the appropriate discount to be given on sentence.

1. In respect of the objective seriousness of the offending, the Crown submitted as follows:

(1)   In respect of Count 4, where the victim JS was aged 11 years, the offender had abused a position of trust and authority. It was agreed that this was not an isolated incident in respect of JS and that the offender had ingratiated himself with the victim's family, which was conduct tantamount to grooming the victim so that he was less on his guard. There was some degree of force involved in respect of the offending in Count 4 and it was submitted that the victim would have been very distressed, as evidenced by the fact that he ran home at the first opportunity.

(2) The aggravating features in respect of Count 4 were that the victim was of vulnerable age (s 21A(2)(l)) and that the offender had abused a position of trust and authority (s 21A(2)(k)). It was further submitted that the Court would have regard to the maximum penalty of 5 years for the offence pursuant to s 81 of the Crimes Act 1900).

(3)   In respect of Counts 5, 6 and 7, the victim SC was 12 years of age and therefore vulnerable, which was an aggravating feature pursuant to s 21A(2)(l). It was submitted that there was some planning involved in the offending and that the conduct of the offender was designed to sexualise the victim prior to the offences taking place. The facts established beyond reasonable doubt that the offending caused a significant degree of distress in the victim and the offender's conduct in indicating that the doors of the car were locked involved a psychological detainment of the victim for the purpose the offending.

(4)   It was submitted that an aggravating feature of this offending was an abuse of a position of trust.

(5)   In respect of the offending in Count 6, it was submitted that the offending was not fleeting in nature and involved the use of force, together with the abuse of a position of trust.

(6)   Similarly, in respect of Count 7, there was abuse of a position of trust and force was used by the offender. In addition, the offender ejaculated into the victim's mouth which constituted a gross humiliation of the victim. The victim was visibly distressed in the presence of the offender and the time they spent in the car thereafter was to self-preserve the offender to protect him from complaint by the victim to his parents. There was therefore a degree of detainment involved.

(7)   In respect of the five Counts on the second Indictment to which the offender pleaded guilty on 1 September 2014, each offence involved an abuse of the offender's position of trust and authority as a teacher, except for Count 5, in respect of the victim JW, where that was an element of the offending.

(8)   The victim in respect of Count 1 was aged nine years and the offending involved brazen and confident acts in the presence of other children in the classroom. It was submitted that the offending was not fleeting and there was a degree of invasiveness involved. The offender continued to be the victim's relief teacher.

(9)   The victim in respect of Count 2 was also nine years of age and an aggravating feature was that the offender was in the position of trust and authority in respect of her. Again, the offending was not momentary and involved an invasive assault with an immediate affect on the victim who felt extremely uncomfortable.

(10)   In respect of Counts 3 and 4 the victim MF was also nine years of age. The offending conduct in respect of Count 4 involved the placing of a chocolate in the pocket of the child which was tantamount to grooming, or at least ingratiating the offender to the victim to avoid detection. That offence was also aggravated by the offence contained in the Form 1 regarding the victim ME.

(11)   The conduct involved in Count 5 was conduct that occurred in the context of normal school activity against the victim JW.

(12)   In assessing the objective seriousness of the offending, the Court would have regard to the fact that the offending took place over a period of 9 years between August 1981 and 1990. It was further submitted that the victim impact statements spoke volumes as to the harm caused to the victims. The fact that previously the offender had been a person of good character had held less weight in the sentencing for historical child sex offences committed in breach of a position of trust and authority.

1. The Crown submitted that the offender was now aged 60 years but there was no positive evidence that his age would make his time in custody more onerous. It was submitted that there should be accumulation in the sentencing reflecting the individual victims in respect of each offence, the differences in the nature of the offending in respect of each offence and because there were multiple offences, there should also be a degree of accumulation in sentencing. In response to a suggestion from the Court that an aggregation of sentences could be adopted pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1986 ("C(SP)A"), the Crown submitted that this was an ideal option for sentencing in this case.

1. In respect of rehabilitation, the Crown submitted that there was no evidence or positive evidence that the offender would benefit from a Sex Offender's Program. The Court should be guarded about whether ultimately the offender had good prospects of rehabilitation. The Crown submitted that the offender had expressed little by way of remorse or contrition, except for the last paragraph of exhibit 1, as extracted above. That document contained a lack of detail in respect of his insight as to the impact of his criminal conduct on the victims and should be given very little weight by the Court. Similarly, the letter from the offender's employer did not indicate that that corporation was aware of his criminal conduct.

1. The Crown submitted that general deterrence was a paramount consideration in sentencing here. A full time custodial sentence was inevitable because of the numbers of the victims, the age of those victims and the years of offending, together with the objective seriousness of the offending. The objective seriousness of the offending, when assessed, having regard to all of the circumstances, should be within the mid-range of seriousness for these offences.

Submissions on Behalf of the Offender

1. Learned counsel for the offender relied on a thorough written outline of submissions relating to sentence. In respect of the plea of guilty for the four offences against SC and JS, it was submitted that notwithstanding the plea of guilty to each charge was made after the two victims were required to give evidence, the offender was entitled to a utilitarian discount on sentence, albeit one of less than 10%. In relation to the five other matters, the plea of guilty was entered on an amended Indictment on 1 September 2014 and in those circumstances, the utilitarian value of the pleas would exceed 10%, but not exceed 15%.

1. Learned counsel set out a number of authorities which highlight relevant principles for sentencing sex offenders, including the following:

• Children are entitled to grow up free of defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life caused by such conduct - R v Dent NSWCCA 24 March 1991.
• Such offenders should be severely punished, especially those who stand in a position of trust. Significant custodial sentences should be imposed for reasons of both general and specific deterrence. Heavy custodial sentences are essential if the courts are to play their role in protecting young people from sexual attacks by adults - R v Fisher (1989) 40 ACrimR 442.
• General deterrence is of prime importance in making the community aware of the attitude of the courts to child sex offences - R v Burchell (1987) 34 ACrimR 148.
• Prior good character is of relatively less importance when sentencing an offender for an offence of this nature - R v Levi NSWCCA 15 May 1997, unreported.
• It constituted specific error to give no weight at all to prior good character - R v Ryan (2001) 206 CLR 267.

1. For offences that occurred a long time ago, in R v MJR (2002) 54 NSWLR 368 the Court of Appeal held that the Court should sentence in accordance with sentencing principles and practice applicable at the time of the offending. At [31] Spigelman CJ said:

"... it is 'out of keeping' with the provisions of s 19 of the C(SP)A, for this Court to refuse to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender."

1. This was borne out by the Court's decision in R v ABS [2005] NSWCCA 255 at [26]:

"Offences involving acts of significant sexual exploitation against children are almost without exception with salutary penalties. Moreover, the legislature has in recent years provided for increased penalties in respect of many such offences. It is an area in which the need to protect children from exploitation and to deter others from acting in a similar fashion assume particular significance."

It is common ground that the penalties for the type of offending here have increased in recent times.

1. Learned counsel conceded that the threshold in s 5 of the Sentencing Act has been met and that a custodial sentence will be imposed in respect of the offending here.

1. In evaluating the objective seriousness of the offending here, learned counsel submitted that it was accepted that the Court would consider the offences against SC by far the most serious of the offences for which the offender is being sentenced. It was submitted that as the offence in Count 7 involved the offender forcing the victim to perform fellatio on him, the intercourse in that form was less than other forms of penetration. Learned counsel referred to Simpson v R [2014] NSWCCA 23 at [30] where Hoeben CJ at CL (with whom Adams and R A Hulme JJ agreed) stated:

"The objective seriousness of sexual offences depends on all the circumstances of the case. It is not confined to the nature of the act committed by the offender. While the form of intercourse can be an important factor, it is not to be regarded as the sole consideration. Also important in assessing the objective seriousness are the degree of violence, the physical hurt inflicted, the form of the forced intercourse, any circumstances of humiliation and the duration of the offence."

1. Counsel accepted that the forcible holding of the victim's wrist and the pushing of the victim's head constituted a degree of violence, however, it was submitted that that degree would fall towards the lower end of the scale. Further, it was submitted that there was no evidence of physical hurt being inflicted on the victim, although he was clearly emotionally distraught following the assault.

1. Counsel further submitted that aside from the obvious humiliation inherent in the commission of the offences, there was an absence of other circumstances of humiliation. Further, the offences occurred over a relatively short period of time. The age of the victim SC (12 years) should also be considered as an objective factor given that offences committed against babies and infants would fall within the same offence.

1. In relation to the offence in Count 4 against JS, and the other five Counts which involved female victims, counsel submitted that the Court would consider the following matters in determining the objective seriousness of the offences:

(a)   The touching of the female victims involved touching of the genitals over the school uniform and underwear of the victims. On that basis the offences would fall towards the bottom of the range of objective seriousness for offences of this nature.

(b)   In respect of the conduct in Count 4 against JS, the objective seriousness of that offence was at the low range as this act was an attempt, and no physical contact of an indecent nature took place, notwithstanding the offender's apparent intent.

(c)   In respect of each of the offences it was submitted that the duration of the offences was not lengthy, nor was there any evidence that the offender used threats as coercion to make the victims engage in these offences. There was no physical hurt inflicted on the victims.

(d)   It was submitted that aside from the obvious humiliation inherent in the commission of the offences, there was an absence of other patent humiliation such as belittling, dressing up or play acting that could amount to aggravating the offence.

(e)   It was further submitted that in respect of the immediate effect of the offences on the female victims would not have been evident to the offender.

(f)   In respect of aggravating features, it was submitted that the Court could not take into account the victims' age as an aggravating feature as it was an element of the offences, with the exception of the offence against JS (Count 4). Nor could the Court take into account as an aggravating feature that the victims were under the authority of the offender for the offences against JC and JW (Counts 5-7 and Count 5 on the second Indictment respectively).

(g)   It was further submitted that the character of the authority which the victims were under must be considered. Abuse of trust, it was submitted, is considered more serious where the offender is the father or family member of the victim. It was submitted that the male victims were not especially vulnerable in the sense that they were not under 10 years of age, relying on R v Boulad [2005] NSWCCA 289.

1. In oral submissions, Counsel for the offender agreed that in respect of Counts 5-7 involving SC, there was a degree of planning involved, but submitted that the Court would not be satisfied beyond reasonable doubt that there was an agreement between the parents of SC and the offender to take him to the football match. The evidence established that there was some planning involved once the offender and the victim left the football match.

1. It was further submitted that the vast majority of the offending occurred in the years between 1981 and 1990, and the majority within the period 1987 to 1990. Counsel also conceded that evidence of good character is a matter given less weight in respect of these offences. Counsel submitted that in sentencing under a different sentencing regime at an earlier time, it was clear from the increase in penalties there had been a change in community standards since the time of these offences. Further, in sentencing at those times, there appeared to be a striking degree of leniency shown to offenders.

1. Counsel acknowledged that the victim impact statements read to the Court and tendered by the Crown were very moving and demonstrated that the offending had a significant effect on the lives of the victims. However, that effect would have to be significantly more deleterious on those victims before it could be regarded as an aggravating feature. Whilst these were matters for the Court to consider, they could not be taken into account as a separate aggravating feature of the offending pursuant to s 21A of the Sentencing Act.

1. Counsel submitted that the Form 1 matters were serious, meaning that the sentence imposed for Counts 4 and 5 on the second Indictment would be greater than would otherwise be the case. It was further submitted that the Court would take into account the subjective circumstances here, namely, that the offender was of good character, he was unlikely to re-offend, he had good prospects of rehabilitation and had shown remorse for his offending.

1. Counsel submitted that the offender had suffered a degree of extra curial punishment in light of the media reporting of the matter which resulted in him experiencing intimidating behaviour by members of the public. It was submitted that this form of extra curial punishment is of a similar character to that in Holyoak v R (1995) 82 ACrimR 502 where such extra curial punishment was considered a mitigating factor.

1. In respect of rehabilitation, it was submitted that there had been no allegations of offending since 1990. Further, the offender is now 60 years old and imprisonment may be more onerous on him "than a person of average age".

1. Counsel submitted that a finding of special circumstances should be made pursuant to s 44(2) of the Sentencing Act on the basis that the offender will be entering custody for the first time and should the offender undergo suitable rehabilitative treatment by way of a sex offender's program.

1. Learned counsel referred the Court to the JIRS statistics in respect of sentencing for similar offences and acknowledged the limited use of the statistics. It was submitted that it was open to the Court to sentence the offender by way of aggregation of the sentences pursuant to s 53A of the Sentencing Act. However, the Court would be required in doing so to consider the sentencing practices of the time, and have regard to the principles of proportionality and totality of the offending, particularly having regard to the repetition of offending here. That repetition would warrant some concurrency in sentencing. Having regard to the objective seriousness of the offending in respect of SC, that sentence should form the basis of the head sentence, with some accumulation in respect of the offending in respect of JS (Count 4) and then some accumulation in respect of Counts 1-5 of the second Indictment.

Determination

1. In respect of the objective seriousness of the offending, I accept the submission of the offender's counsel that the offences in the first Indictment against SC, and in particular Count 7, comprise the most serious offences for which the offender is being sentenced. Count 7 involved the offender forcing the victim to perform fellatio on him by pushing his head down onto his erect penis and holding him until he had ejaculated. Whilst it may be considered a less serious form of penetration, it involved a considerable degree of force, intimidation, abuse of trust and extreme humiliation on a boy of 12 years of age with no sexual experience. The offending caused a significant degree of distress in the victim and the offender's conduct in telling the victim that the car doors were locked involved a psychological detainment of him for the purpose of the offending. I find the objective seriousness of the offending in respect of Count 7 within the mid-range for offences pursuant to s 61D(1A) of the Crimes Act 1900.

1. The objective seriousness of the conduct in Count 5, namely, by the offender masturbating his erect penis and grabbing hold of the victim's wrist and saying "You can't get out because I've locked the doors" is within the lower range of objective seriousness for offences pursuant to s 61E(2A) of the Crimes Act, however, it still constitutes serious offending.

1. The objective seriousness of the offending in Count 6, namely, the offender pulling the victim towards him by the wrist and forcibly putting the victim's hand on his penis and forcing it up and down, thereby masturbating the offender, is also conduct within the lower range of objective seriousness of offences pursuant to s 61E(2A) of the Crimes Act, however, it still constitutes serious offending.

1. The objective seriousness of the offending in Count 4 on the victim JS, where the offender grabbed the victim's right hand and pulled the victim's right arm towards the offender's genital area and said "What can you do with this?", was also within the lower range of offending for offences pursuant to s 81 of the Crimes Act. In assessing the seriousness of the offending, I have had regard to the fact that the offender abused a position of trust and authority, that the offence was not an isolated incident in respect of JS, and that there was some degree of force involved in the offending.

1. In respect of the offending in Counts 1 - 5 of the second Indictment, each of the offences involved an abuse of the offender's position of trust and authority as a teacher, except for Count 5 where that was an element of the offence. None of the offending was momentary and each involved an invasive assault which affected the victims.

1. The touching of each of the victims involved touching of the genitals over the school uniform and underwear of the victims. Whilst there was no physical hurt inflicted on any of the victims, there was obviously humiliation inherent in the commission of the offences.

1. Whilst the offender was not related to the victims, the abuse of trust involved as a teacher and a person in authority over victims of tender years, is still serious. I therefore find that whilst the objective seriousness of the offending in respect of each of the Counts 1 - 5 of the second Indictment were towards the lower end of the range for offences pursuant to s 61E(1) (in respect of Counts 1 to 4), and s 61E(1A) (in respect of Count 5), the offending still constituted serious offending.

1. The offender pleaded guilty to the four Counts on the Indictment following cross-examination of the two victims. There was little utilitarian benefit in a plea of guilty at that stage of the trial and whatever benefit arose leads to an assessment of no more than 5% discount on sentence in respect of Counts 4-7 on the Indictment. In respect of the five Counts in the second Indictment, given that the pleas of guilty were entered on the first day of trial, I assess the utilitarian discount in respect of those matters at 10%.

1. Clearly, both general deterrence and specific deterrence are important to the sentencing process here in delivering a clear message to the community and to the offender that the criminal conduct involved in respect of these offences is absolutely unacceptable in our community, and that the most vulnerable members of our community warrant the full protection of the law from such egregious conduct.

1. I accept the submissions made on behalf of the offender that prior good character must be taken into account, but given less weight in the circumstances of this offending which took place over a large number of years, between 1981 and 1990.

1. An aggravating feature of the offending here was a degree of planning involved in respect of Counts 5, 6 and 7 on the Indictment. Whilst I am not satisfied beyond reasonable doubt that there was an agreement between the offender and the parents of SC as to the arrangements for the offender taking the victim to the football match, I am satisfied beyond reasonable doubt that there was a degree of planning by the offender as to what was going to happen after they left the match.

1. The Crown bundle (exhibit A) contained victim impact statements from SC, JS, AH, MF, RW and AD. The first four of those were read in the sentence hearing. Individually, and together, they constituted a poignant exposition of the extent of the trauma suffered by each of the victims, and the impact of that trauma on every aspect of their lives. I also had the opportunity of observing closely SC and JS when they gave evidence in the trial, prior to the offender entering pleas of guilty to Counts 4-7 on the Indictment.

1. I note that there is no medical evidence against which to assess the victim impact statements, however, as noted by the sentencing judge in the related matter of R v Harmata (2013) NSWDC 214 at [61], it is appropriate to record what was said by the President of the Royal Commission into Institutional Response to Child Sex Abuse at the opening hearing of the Royal Commission on 16 September 2013. In his opening address, Justice McClellan said:

"What many may consider to be low levels of abuse of boys and girls can have catastrophic consequences for them, leading to a life which is seriously compromised from what might otherwise have been. Both boys and girls are left with a distrust of adults and difficulties with intimacy. Inappropriate touching of boys may leave them with confusion as to their sexual identity. This can result in life long difficulty in relationships which can cause problems in other aspects of their lives. Although the impact on the lives of abused persons has been reported within the academic literature, I have no doubt that it is not well understood by the general community. In my role as a Judge I have been called upon to review many of the sentences imposed upon people convicted of the sexual abuse of children but I readily acknowledge that, until I began my work with the Commission, I did not adequately appreciate the devastating and long lasting effect which sexual abuse, however inflicted, can have on an individual's life."

1. As pointed out by the sentencing judge in Harmata at [63], the insight contained in that above quotation was "not widely held in 1987, if at all, and the offender is not to be unduly punished by reference to it".

1. In R v MJR [2002] NSWCCA 129 the Full Court of the New South Wales Court of Criminal Appeal held by majority that the correct approach in sentencing of historical offences was to take into account the sentencing practice as at the date of the commission of the offence when sentencing practice has moved adversely to an offender. That is the case here in respect of the sexual offences with which the offender is charged.

1. It has been recognised that the ascertainment of sentencing practice decades prior to sentencing may be difficult to ascertain. However, a sentencing judge must sentence according to the penalties available at the time of the offending, having regard to the objective seriousness of the offending and acknowledging that the sentences at the time of the offending were lower than would otherwise have applied to more recent criminal offences - see MBP v R [2013] NSWCCA 213. I therefore intend to proceed to sentence in accordance with those principles.

1. I am not persuaded that the offender has suffered a degree of extra curial punishment in light of the media reporting of the matter. It was submitted that this had resulted in him experiencing intimidating behaviour by members of the public, however, there was no evidence placed before me of that. Adverse publicity in the national media may amount to extra curial punishment by way of humiliation and vilification, for example, see Einfeld v R [2002] NSWCCA 87 at [93] - [100]. However, whether such humiliation can give rise to mitigation of sentence remains unresolved by the High Court of Australia - see R v Gittany (No. 5) [2014] NSWSC 49. I am not persuaded here that the media reporting of this matter will amount to extra curial punishment. Rather, there is a public interest in widespread reporting of such matters.

1. In sentencing in respect to Counts 4 and 5 on the second Indictment, I have taken into account the Form 1 in respect of each Count respectively the offences listed on each Form 1.

1. I further find that special circumstances are established here pursuant to s 44(2) of the C(SP)A on the basis of the offender's need for rehabilitation, and in particular, his need to attend sex offender's programs. I do not accept the Crown submission that there is no positive evidence that the offender would benefit from such programs. The offender has indicated a willingness to engage in such programs and has the support of his wife in doing so. I have also had regard to the subjective features of this matter highlighted by Counsel for the offender, namely, the offender's prior good character, his good prospects of rehabilitation and the remorse he has shown for his offending. I also acknowledge that there has been no allegations of offending since 1990 and that the offender is now 60 years of age. I do not accept that imprisonment may be more onerous on him than a "person of average age".

1. General deterrence is clearly a relevant consideration in sentencing in respect of the offending here.

1. Finally, I have had regard to the JIRS statistics in respect of such offending, together with the records submitted from the Office of the Public Defenders in respect of historical sexual offences. They are of limited utility in the sentencing process, particularly as I intend to proceed by way of an aggregation of the sentences pursuant to s 53A of C(SP)A.

Sentence

1. I am satisfied that there is no alternative to full time custodial sentence pursuant to s 5 of C(SP)A.

1. I have had regard to the principles of parity, proportionality and totality referred to in Pearce v The Queen (1998) 194 CLR 610. . There is no general rule as to whether sentences should be served concurrently or cumulatively, and I acknowledge that the issue is one of totality; see Cahadi v The Queen (2007) 168 A Crim R 41.

1. As indicated above, I intend to aggregate the sentences of imprisonment here pursuant to s 53A. In doing so, I am mindful that aggregation of sentences pursuant to that section must reflect some accumulation of the indicative head sentences - see R v Rae [2013] NSWCCA 9. Pursuant to s 53A(2) I am obliged to record the indicative sentences that I would have otherwise imposed instead of an aggregate sentence. I accept the submission of counsel for the offender that the first matter for the offender to be sentenced on should be Count 7 in the Indictment, namely, the offence pursuant to s 61D(1A) of the Crimes Act 1900, for which there is a maximum penalty of 12 years imprisonment. I therefore intend to indicate the sentences that I would have imposed in respect of each offence, starting with Count 7, and then indicate sentences in respect of Count 5, 6 and 4 of the Indictment, and then set out the indicative sentences in respect of the second Indictment. Those indicative sentences are as follows:

(1) Count 7 - Offence pursuant to s 61D(1A) - Sentence of 4 years and 9 months imprisonment.

(2) Count 5 - Offence pursuant to s61E(2A) - Sentence of 6 months imprisonment.

(3) Count 6 - Offence pursuant to s 61E(2A) - Sentence of six months imprisonment.

(4) Count 4 - Offence pursuant to s 81 - Sentence of nine months imprisonment.

1. In respect of the second Indictment the indicative sentences are as follows:

(1) Count 1 - Offence pursuant to s 61E(1) - Sentence of nine months imprisonment.

(2) Count 2 - Offence pursuant to s 61E(1) - Sentence of nine months imprisonment.

(3) Count 3 - Offence pursuant to s 61E(1) - Sentence of nine months imprisonment.

(4) Count 4 - Offence pursuant to s 61E(1) - Sentence of six months imprisonment.

(5) Count 5 - Offence pursuant to s 61E(1A) - Sentence of nine months imprisonment.

1. You will be convicted of each of the Counts 4-7 in the Indictment and Counts 1-5 in the second Indictment and pursuant to s 53A of the C(SP)A I intend to impose an aggregate term of imprisonment of 8 years to commence on 1 September 2014.

1. Having found special circumstances pursuant to s 44(2) I intend to vary the usual ratio of the non-parole period to the head sentence and order that you serve a non-parole period of 5 years to commence on 1 September 2014 and to expire on 31 August 2019. The balance of sentence of 3 years will commence on 1 September 2019 and expire on 31 August 2022.

1. Your parole eligibility date will be 31 August 2019.

Orders

1. I make the following orders:

(1)   You are convicted of Counts 4-7 on the Indictment and Counts 1-5 on the second Indictment and pursuant to s 53A I impose an aggregated term of imprisonment.

(2)   I fix an aggregate non-parole period of 5 years to commence on 1 September 2014 and to expire on 31 August 2019.

(3)   I fix a balance of the aggregate term of 3 years to commence on 1 September 2019 and to expire on 31 August 2022.

(4)   Your parole eligibility date will be 31 August 2019.

(5)   I have certified that I have taken into account the offences contained in the two Form 1's in respect of Counts 4 and 5 of the second Indictment.

(6)   As of today, lift the order made pursuant to s 7 suppressing the name of the Offender.

Decision last updated: 16 December 2014