R v Baker

[2020] NSWDC 615

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Baker [2020] NSWDC 615

Hearing dates:

31 July 2020

Date of orders:

07 September 2020

Decision date:

07 September 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Aggregate sentence of imprisonment of 18 years with a non-parole period of 12 years

Catchwords:

CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity

CRIME — Sexual offences — Act of indecency

CRIME — Sexual offences — Aggravated sexual assault — Victim

CRIME — Sexual offences — Aggravated sexual assault — Victim under authority

CRIME — Sexual offences — Indecent assault — Circumstances of aggravation

SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victim

SENTENCING — Aggravating factors — Multiple victims

SENTENCING — Aggravating factors — Presence of child

SENTENCING — Aggravating factors — Record of previous convictions

SENTENCING — Aggravating factors — Substantial harm, injury, loss or damage — Victim impact statement

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Form 1 offences

SENTENCING — Relevant factors on sentence — General principles

SENTENCING — Relevant factors on sentence — Maximum penalty

SENTENCING — Relevant factors on sentence — Multiple offences

SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Relevant factors on sentence — Objective seriousness

SENTENCING — Relevant factors on sentence — Parole period

SENTENCING — Relevant factors on sentence — Purposes of sentencing

SENTENCING — Sentencing procedure — Agreed facts

SENTENCING — Sentencing procedure — Expert reports

SENTENCING — Sentencing procedure — Reasons for sentence

SENTENCING — Subjective considerations on sentence — Protective custody

SENTENCING — Subjective considerations on sentence — Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Mental Health Act 2007

Cases Cited:

Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518

Bugmy v The Queen [2013] HCA 37

Butters v R [2010] NSWCCA 1

Imbornone v The Queen [2017] NSWCCA 144

Lam v R [2015] NSWCCA 143

Markarian v R [2005] HCA 25

Muldrock v The Queen (2011) HCA 39

Munda v The State of Western Australia [2013] HCA 38

Munroe v R [2006] NSWCCA 350

Pfitzner v R [2010) NSWCCA 314

R v Borkowski [2009] NSWCCA 102

R v Elfar [2003] NSWCCA 358

R v Engert (1995) 84 A Crim R 67

R v Harrison [2001] NSWCCA 79

R vMcGourty [2002] NSWCCA 335

R v Palu [2002] NSWCCA 381

R v Qutami [2001] NSWCCA 353

Tepania v R [2018] NSWCCA 247

Van Zwam v R [2017] NSWCCA 127

Veen v The Queen (No 2) 1988 HCA 14

Category:

Sentence

Parties:

Regina (Crown)
Craig Myles Baker (Offender)

Representation:

Susan Oliver (Crown Prosecutor)
Alan Conwell (counsel) (Offender)

Director of Public Prosecutions (NSW) (Crown)
Younes+Espiner Lawyers (Offender)

File Number(s):

2018/146753, 2017/161047, 2017/350533 & 2017/381788

Publication restriction:

No publication of the names of the victims or of any information which may enable their identities to be ascertained

REVISED JudgEment

Introduction

1. Craig Myles Baker appears today for the determination of sentence to be imposed for 13 offences charged in an indictment upon which he was arraigned before me when I was sitting in the District Court of New South Wales in Coffs Harbour.

2. I had been allocated to this as a special fixture listed in that centre when it was anticipated that the accused, as he then was, would proceed to trial. He was at that point represented by Mr Michael Gleeson of Counsel.

3. On the first day there were difficulties in having the accused at court because of bush fires which at that point had just begun to evolve. It is a matter of history now that what occurred thereafter were extensive bush fires across the State of New South Wales causing havoc, extensive damage, and extensive loss of life. Ultimately Mr Baker could not be brought to Coffs Harbour for the proceedings and thus presented to the Court by way of an audio/visual link.

Plea Negotiations

4. Time was sought by Mr Gleeson to consult with the Crown and to confirm instructions, and these ultimately resulted in arraignment on 12 November 2019 when in response to each of the 13 charges the accused pleaded guilty and became the offender. No reason existed for not immediately convicting him of the offences and I took that course.

The Offences

5. Count 1 alleged:

“On 18 February 2015 at Coffs Harbour in the State of New South Wales [the offender] did assault SL and at the time of that assault did commit an act of indecency on SL in circumstances of aggravation, namely at the time of the offence SL was a person under the authority of [the offender] by reason of being his patient.”

6. The offence is contrary to s 61M(1) Crimes Act 1900. The maximum penalty specified for the offence is imprisonment for seven years. There is a standard non-parole period of five years specified for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

7. Count 2:

“Between 1 January 2015 and 13 March 2017 at Coffs Harbour in the State of New South Wales [the offender] did assault BS and at the time of that assault did commit an act of indecency on BS, a child then under the age of 16 years, namely between ten and 12 years.”

8. That offence is contrary to s 61M(2) Crimes Act 1900 by which the maximum penalty specified is imprisonment for ten years with a standard non‑parole period of eight years.

9. Count 3:

“Between 1 January 2015 and 13 March 2017 at Coffs Harbour in the State of New South Wales [the offender] did expose BS a child under the age of 14 years, namely between ten and 12 years, to indecent material, being pornographic videos, with the intention of making it easier to procure the child for unlawful sexual activity with himself.”

10. This offence is contrary to s 66EB(3) Crimes Act 1900; the maximum penalty for this offence is imprisonment for 12 years with a standard non-parole period of five years.

11. Count 4:

“Between 1 February 2016 and 14 January 2016 in Coffs Harbour in the State of New South Wales [the offender] did assault BL and at the time of the assault did commit an act of indecency on BL, a child then under the age of 16 years, namely 14 years.”

12. This offence is contrary to s 61M(2) Crimes Act 1900. The maximum penalty is ten years with a standard non-parole period of eight years.

13. Count 5:

“Between 1 June 2016 and 14 June 2016 at Coffs Harbour in the State of New South Wales [the offender] did expose BL, a child under the age of 16, namely 14 years, to indecent material, being pornographic videos, with the intention of making it easier to procure the child for unlawful sexual activity with himself”

14. This is contrary to s 66EB(3) Crimes Act 1900. The maximum penalty is imprisonment for ten years with a standard non-parole period of four years.

15. Count 6:

“Between 1 August 2016 and 31 January 2017 at Coffs Harbour in the State of New South Wales [the offender] did incite JM, being a person then above the age of 16 years, namely between 22 and 23 years, who was under the authority of [the offender] by reason of being his patient, to commit an act of indecency with or towards [the offender].”

16. This is contrary to s 61O(1A) Crimes Act 1900. The maximum penalty is imprisonment for three years, no standard non-parole period applies.

17. Count 7:

“Between 1 September 2016 and 28 February 2017 at Nambucca Heads in the State of New South Wales did assault NS, and at the time of that assault did commit an act of indecency on NS in circumstances of aggravation, namely that at the time of the offence NS was under the authority of [the offender] by reason of being his patient.”

18. This was contrary to s 61M(1) Crimes Act 1900. The maximum penalty is seven years with a standard non-parole period of five years.

19. Count 8:

“Between 1 February 2017 and 31 May 2017 at Nambucca Heads in the State of New South Wales [the offender] did assault NS and at the time of that assault did commit an act of indecency on NS in circumstances of aggravation, namely at the time of the offence NS was under the authority of [the offender] by reason of being his patient.”

20. This was contrary to s 61M(1) Crimes Act 1900. The maximum penalty is seven years with a standard non‑parole period of five years.

21. Count 9:

“Between 1 February 2017 and 31 May 2017 at Nambucca Heads in the State of New South Wales [the offender] did assault NS and at the time of that assault did commit an act of indecency on NS in circumstances of aggravation, namely that at the time of the offence NS was under the authority of [the offender] by reason of being his patient.”

22. This was contrary to s 61M(1) Crimes Act 1900. The maximum penalty is seven years with a standard non-parole period of five years.

23. Count 10:

“On 6 March 2017 at Nambucca Heads in the State of New South Wales did expose CA, a child under the age of 14 years, namely 9 years, to indecent material, being pornographic videos, with the intention of making it easier to procure the child for unlawful sexual activity with himself.”

24. This was contrary to s 66EB(3) Crimes Act 1900. The maximum penalty is imprisonment for 12 years with a standard non-parole period of five years.

25. Count 11:

“On 6 March 2017 at Nambucca Heads in the State of New South Wales [the offender] did commit an act of indecency towards CA, a child then under the age of ten years, namely nine years.”

26. This was contrary to s 61O(2) Crimes Act 1900. The maximum penalty is seven years, no standard non‑parole period applies.

27. Count 12:

“On 13 May 2017 at Coffs Harbour in the State of New South Wales [the offender] did assault HK and at the time of that assault did commit an act of indecency on HK, a child then under the age of 16 years, namely 11 years.”

28. This was contrary to s 61M(2) Crimes Act 1900. The maximum penalty is imprisonment for ten years with a standard non-parole period of eight years.

29. Count 13:

“Between 17 May 2017 and 24 May 2017 at Nambucca Heads in the State of New South Wales [the offender] did expose SU, a child under the age of 14 years, namely 9 years, to indecent material, being pornographic photographs and videos, with the intention of making it easier to procure the child for unlawful sexual activity with himself.”

30. This was contrary to s 66EB(3) Crimes Act 1900. The maximum penalty is imprisonment for 12 years with a standard non-parole period of five years.

Additional Offences – Forms 1

31. There are additional offences to be taken into account. There are Forms 1 signed on behalf of the Crown and by the offender. They relate to different offences in the indictment.

32. The first Form 1 that I have attaches to count 3 in the indictment. The offence included and to be taken into account is an offence of an act of indecency upon a victim under 18 years of age and under authority. The allegation is made in respect of the person BS. The allegation is one of masturbation in front of the child. The offence is alleged to have occurred between 1 January 2015 and 13 March 2017 at Coffs Harbour. The offender confirmed that he wishes that offence to be taken into account when sentence is determined on count 3 and admitted that he is guilty of that additional offence.

33. With count 5 there is an additional offence on a Form 1 of aggravated indecency towards a victim under 16 and under authority. The victim is BL. This was exposure of the offender’s penis to the child between 14 June 2016 and 30 September 2016 at Coffs Harbour. The Form 1 is signed on behalf of the Crown and by the offender. The offender confirmed to the Court his wish that this additional offence be taken into account when sentence is imposed on count 5 and admitted he is guilty of that offence.

34. The Form 1 for count 6 on the indictment includes an additional offence of inciting aggravated indecency upon a victim 16 years or over but under authority. The person was the victim JM, who was incited to stand naked in front of or at a window. This is said to be the first time this conduct was incited. It occurred between 1 August 2016 and 31 January 2017 at Coffs Harbour. The offender confirmed his wish that this additional offence be taken into account when the sentence is determined upon count 6 and he admitted that he is guilty of that offence.

35. For count 7 there is an additional offence, two of them in fact, to be brought to account, both at Nambucca Heads, between 1 September 2016 and 28 February 2017. The first is inciting aggravated indecency, the victim 16 years or over but under authority. The victim is NS. The allegation is massage with underwear on. The second is aggravated indecent assault, the victim under authority, the victim is NS. This was conduct inciting the victim to walk naked from a toilet block. The offender confirms his wish that these additional offences be taken into account when sentence is imposed on count 7 and admitted his guilt in respect to each of them.

36. Count 12 has an additional offence in Coffs Harbour on 13 May 2017, of indecent assault upon a person under 16 years of age, the victim is HK. This involved resumption of a massage of the child’s genitals over clothing. The offender confirmed his wish that the offence be taken into account when sentence is determined on count 12, and admitted that he is guilty of the offence.

37. The final count on the indictment, count 13, has an additional offence, at Coffs Harbour between 17 May 2017 and 24 May 2017. The offence is one of indecent assault of a person under 16 years of age, the victim is SU. The conduct was rubbing the child’s finger in a “humping action”. The offender confirmed his wish that this be taken into account when sentence is determined on count 13 and admitted that he is guilty of the offence.

38. Each of these additional offences will be brought to account in assessment of sentences for the principal crimes and there will in each case be an increase in the sentence that would otherwise have been imposed were sentences for those principal offences to be determined upon them alone.

39. The offender has availed of this process whereby the offences against him are resolved with a greater measure of efficiency. At the same time he has the benefit of not facing separate punishment for these additional offences. The approach to be taken by the Court in such matters has been the subject of appellate authority in Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.

40. The additional offences must impinge upon the sentences to be determined for the principal offence to which they relate. There will be an appropriate increase in each case to the sentence that would otherwise have been imposed thereby to reflect the need for greater weight to be given to the aspect of personal deterrence, arising from the extent of the offender’s misconduct, and also to reflect the community’s entitlement to retribution for all that he has done wrong. I am familiar with the authority; it is applied regularly in proceedings where offences are taken into account.

41. I will note that some of these additional offences are of less seriousness than others and therefore the impact will be different according to the assessment of the seriousness of the additional offence in each case. For example the offence to be taken into account for the determination of sentence on count 3 is an allegation that the offender masturbated in front of the child. That might be thought, upon analysis, to be a little more serious than merely exposing his penis to the victim, which is the offence to be taken into account for the sentence to be determined on count 5.

42. The offence taken into account for sentence on count 6 involved the victim being incited to stand naked at a window. The offences to be taken into account with count 7 involved the victim being incited to walk naked from a toilet block, and the other offence to be brought to account in respect of that principal offence was the massaging of the victim with underwear on.

43. It might be thought that the additional offence to be brought to account with the sentence on count 12, where the offender resumed the massage of a child on the genitals over clothing, is a more serious offence than massaging of other parts of the body with underwear on.

44. Finally for count 13, the additional offence is one of rubbing a child’s finger in a “humping action”. I will need to explore the detail of that when I come to rehearse the facts, but that would seem to me to be, on that bare description, toward the lower end of objection seriousness, which must be brought to account when assessing the extent to which that additional offence will be assessed for the appropriate increase in the sentence for the principal offence were it standing alone.

Pre-Sentence Custody

45. The offender has been in custody since his arrest on 18 December 2017. The sentence that I will impose in the aggregate, allowing for appropriate concurrence and accumulation of the indicative sentences that I will specify in due course, must commence on that date to bring into account his pre‑sentence custody.

The Pleas of Guilty

46. He did not plead guilty to these offences at the first opportunity that he might have done so. Indeed the history of the proceedings has been protracted because of the course taken by the offender as they progressed. Section 25D Crimes (Sentence Procedure) Act 1999 governs the extent to which there should be a discount for utility that is provided by these pleas of guilty. The legislation specifies a discount of 10%, which, as the Crown submits, is applied to these offences [1] . The discount will be applied to the indicative sentences that I select for each offence and thereupon the aggregate sentence shall be announced.

    1. Discussion here followed upon my incorrect specification of 10% as the appropriate discount for utility pursuant to these provisions.

47. As the Crown correctly points out, not all of these charges are caught by the provision to which I referred. The Crown helpfully provided in the first written submissions that were submitted a table identifying those to which the legislation applied. Those to which the legislation did not apply and where common law principles are engaged, such as expressed in the decision in R v Borkowski [2009] NSWCCA 102, could attract a discount of 5% for utility. However, I have taken the view, as I announced to the Crown a moment ago, that for consistency I would adopt the 10% range. It would seem to me that is consistent with what Parliament has intended in the promulgation of those provisions to manage the earlier acceptable plea of guilty system that is now in place, although I accept there is much merit in what the Crown has said regarding the discount of 5% for the offences to which common law principles apply. [2]

    2. The allocation of discounts here was incorrectly expressed. Later in this portion of the judgement the Crown rose to correct me, and toward the conclusion of the judgement the correct percentage discounts are applied to the sentences indicated as appropriate for the individual offences.

48. The extent to which the pleas of guilty might reflect the offender’s contrition and remorse has to be informed, I believe, by the history of the proceedings. As I indicated, the matter was listed for trial, and after there were negotiations and instructions were taken, pleas of guilty were entered to the 13 counts on the indictment. Thereafter, while I was sitting in Coffs Harbour the opportunity was taken for the victims of this misconduct to have the Court consider their victim impact statements.

49. On 13 November 2019 that exercise was undertaken and it was then noted that there were to be disputed facts with regard to two of the victims. The matter was adjourned from that date to 14 November. On that date it was announced that the matter would not proceed to a disputed facts hearing. Thereupon the matter was adjourned to 21 February 2020 for further sentence hearing part-heard before me.

46. Mr Gleeson continued to represent the offender for some time thereafter until he was unable to do so.

47. On 21 February 2020 the parties were unable to proceed because of late service of reports and the unavailability of an expert witness. The matter was adjourned to 19 March 2020 part-heard. At that point the estimate was that two days were required. An order was made for the production of a report by Dr Gordon Elliott and for an updated sentence assessment report, and an updated psychological assessment.

48. On 19 March 2020 the matter was adjourned of 21 April 2020, noting that the Form 1 documents had been signed by both the Crown and the accused. Access was granted to documents produced by Corrective Services.

49. On 21 April 2020 leave was sought by the then representatives of the offender to withdraw. The offender at that stage was represented by Ms Mikhiael, who had come into the matter in place of Mr Gleeson who for given reasons could not appear. Leave was granted to counsel and her instructing solicitor to withdraw from the matter.

50. It was announced that the offender wished to withdraw his pleas of guilty in respect of each of the charges on the indictment. He had spoken to a solicitor within the preceding four weeks and that person was intending, so he said, to represent him. The matter was adjourned until 5 May 2020 for management of the application to withdraw the pleas of guilty.

51. On 5 May 2020 the solicitor identified appeared and a further adjournment of four weeks was sought. Legal Aid had assigned the proceedings to this solicitor’s firm and the files were in the process of being sought from the preceding lawyers. The matters was adjourned to 2 June 2020 for mention to allocate a further hearing date and on that day it was announced that the offender would abandon his intention to make application to withdraw the pleas of guilty.

52. Mr Conwell of Counsel, who has ably represented the offender ever since, was announced as Counsel to appear for the offender, and the matter was adjourned to 31 July 2020 for the continuation of the hearing. On that date witnesses who provided reports, Dr Elliott, Dr Pulley and Ms Howell, a psychologist, were presented and faced cross-examination, and thereupon the matter was adjourned until today for further hearing and final resolution.

53. The parties in the meantime provided me with further material including further submissions to which they spoke this morning in the further conduct of the matter.

54. Thus there is careful assessment required of the extent to which the offender has demonstrated contrition and remorse regarding the matters. There has been a measure of vacillation between when the matter first came before me at Coffs Harbour and the present stage of the proceedings, including along the way dissatisfaction, it would appear, with a prior representative, and an indicated application to withdraw pleas of guilty which in due course was abandoned.

The Facts

59. As the Crown correctly pointed out this is a complex sentencing exercise. The agreed facts on sentence that are included in the Crown bundle, marked exhibit A, I shall now address.

60. The offender was born in 1966. He was awarded a Bachelor of Psychology from a University in Australia in 2012. He practised as a clinical psychologist in Coffs Harbour from January 2015 until May 2017.

61. He is a South African national. As a child he migrated to Australia, obtained Australian citizenship in 1974, after his father obtained citizenship. He spent several years in the United States of America in the 1990s.

62. When he first applied for registration with the Australian Health Practitioner Regulation Agency in 2013 he signed a declaration to the effect that he had no prior convictions in Australia or any other country. He signed similar declarations upon renewal each year up to the suspension and then cancellation of his registration in 2017.

63. The Australian Health Practitioner Regulation Agency is responsible for the registration of suitable persons as health practitioners in 16 regulated health professions and it relies on self-reporting about prior convictions and other matters affecting registration.

64. The Psychology Board of Australia is responsible for the regulation of the profession in Australia; there is no co-regulatory New South Wales authority.

65. The declarations made by the offender were false. In the United States of America in 1992 he was convicted of two offences of public indecency in Hilliard, Ohio and one count of theft in Westerville, Ohio. In 1993 he was convicted of one count of public indecency in Columbus, Ohio. In 1996 he was convicted of one count of gross sexual imposition of a minor leading to his deportation to Australia in 1999.

66. From late 2014 the offender lived in Coffs Harbour at an address in Boambee East. He had part-time consulting rooms in Coffs Harbour and Nambucca Heads, but with no permanent office his patient files were kept at his home.

67. In Coffs Harbour he sub-let rooms for some days of the week at Kimberley House on the corner of Grafton and Little Street in the Coffs Harbour CBD. He used Suite 201 of Kimberley House in 2015, then Suite 215 in November 2016, and then Suite 222 in May 2017.

68. Suite 201 in Kimberley House had a full time receptionist and two other psychologists, Adam Patrech and Hayley Farrell. They owned the business under the name Inspired Solutions. The offender was employed by Patrech, who would refer patients to the offender so that Patrech could focus more upon the business operation. Inspired Solutions closed in December 2015.

69. The offender entered a verbal agreement to sub-let Suite 215 from another psychologist, Eileen Moore, on Mondays and Saturdays when Moore did not work. He used this room from December 2015 to November 2015, after which Moore moved to Suite 222 when the offender had the same arrangement with her in Suite 222. There was no receptionist at either Suite 215 or 222. The building was closed to the public on Saturdays.

70. In Nambucca Heads the offender used a room at the CHESS Employment Service at Ridge Street usually on Tuesdays and Thursdays. CHESS frequently referred job seekers to the offender for psychological treatment.

71. Between 2015 and 2017 the offender was regularly referred children and adult patients by employment services, both CHESS and Nortech, and by local GPs and other health clinicians. He was well regarded by the people who referred him, and in addition was one of the few psychologists who would bulk bill services.

The Complaints and the Investigation

72. Between May 2017 and February 2018 eight former patients of the offender made formal complaints to police of offences committed against them during consultations between February 2015 and May 2017.

73. In May 2017, 11 year old HK had one consultation with the offender. Immediately after the consultation he complained to his mother who that day called the police. The accused was arrested for the offence against HK on 29 May 2017 and was bailed. His sole bail condition was not to be alone with children under the age of 16 years.

74. His registration was suspended on 5 June 2017 and was later cancelled.

75. On receiving HK’s complaint police checked their records for any other matters involving the offender. They found a 2015 complaint and statement by SL then 20 years old, which had not resulted in any charge being laid. Detective Rebecca Furyk from Coffs Harbour Child Abuse Squad spoke to SL who confirmed he would give evidence.

76. The fact that the offender was charged with offences against HK was published on the New South Wales Police Facebook page and in various media outlets. Though it did not name him, it described him as a 51 year old male, a psychologist, from Coffs Harbour, and said that the patient was a child.

77. The mother of ten year old SU saw these media reports and suspected it was the offender. SU had consulted the offender in May 2017 but the offender cancelled all further appointments from June 2017.

78. Later that year when his mother was looking for another psychologist, SU asked why he was not returning to the offender. His mother told him he was in trouble and asked if he had done anything to SU. SU initially denied it but later that same night told her of certain things that the offender had done to him. The offender was charged with offences in relation to SU on 20 November 2017. He was again released to bail. This arrest was also publicised though again without naming the offender.

79. NS, then 26 years of age, saw the two media reports in 2017 and believed them to relate to the offender. Upon seeing the second of them he rang the employment provider who had referred him to the offender, CHESS, at Nambucca Heads, and told them that things had occurred to him. CHESS referred him to police, NS made a formal complaint on 30 November 2017, and charges were laid on 19 December 2017. The offender was refused bail.

80. The investigation of these three complaints led police to obtain search warrants to search the offender’s unit in Boambee. He had no permanent office; this is where the police believed he had been keeping patient files. They searched first on 7 November 2017 after the first two complaints by HK and SU looking for their patient files and obtained them from a filing cabinet in an office. They also took the files of other patients under 16 years of age to commence a canvass to see if any of those children had complaints to make.

81. They searched again on 5 December 2017 having by then received NS’s complaint. Police had not sought to take his file on the earlier search because he was an adult and on that earlier search they only had complaints by two children. During this search the police located NS’s file in a suitcase in the spare room along with the files of JM, BL and CA. All the patients under 16 years of age whose files had been taken on the first search, and JM, BL and CA were contacted by police.

82. By February 2018 police had formal complaints by the remaining five complainants, BS, whose files were taken on the first search when the children’s files were taken, and BL, JM, SL and CA, whose files were found in the suitcase on the second search.

83. The offender was served field court attendance notices for the charges relating to the last five complainants on 10 May 2018. He was then in custody. He was offered the opportunity to be interviewed after each set of charges was served but he declined.

The Individual Offences

84. Count 1 relates to SL. As noted it is contrary to s 61M(1) Crimes Act 1900. It is an offence of aggravated indecent assault with a maximum penalty of seven years and standard non-parole period of five years.

85. In February 2015 SL, 20 years of age, was recommended to Adam Patrech of Inspired Solutions. He had two sessions, one on 11 February 2016 and the other on 18 February 2016 at Suite 201, Kimberley House at Coffs Harbour. When he arrived for the first session he was told he would be instead seeing the offender.

86. In that first session the offender asked SL about his sexuality. SL mentioned that he was seeing a psychotherapist for a bad back. The offender asked SL to show him his back. SL took off his shirt and the offender touched his spine.

87. At the end of the second sessions SL stood near the offender, as he sat at his computer, thinking the offender was making another appointment time. The offender pointed a finger towards SL’s arm and asked, “Does this make you feel insecure?” SL replied, “No”. The offender then poked him on his arm and said, “What about this?” SL said, “No”.

88. The offender stood up and moved to stand behind SL. He used both hands to massage SL from his shoulders down his back to his hips and then back up, before moving his hands around the front to his stomach and chest area. Eventually he moved his hands down to his shorts and put his right hand in the right pocket and massaged his groin area. He put his left hand down the front of SL’s shorts and inside his boxers. He took hold of SL’s penis with his left hand, SL became involuntarily erect.

89. The offender removed his hands from the shorts and massaged both SL’s legs on the outside of his shorts. Over his clothing he massaged the inside of his thighs, his testicles and his buttocks. He massaged back up his back, stomach and neck. Thus is described the offence charged in count 1 on the indictment.

90. SL was under the offender’s authority because SL was under his care for psychological treatment. The offender asked SL to return for another treatment and an appointment was made for the following week.

91. SL left having no intention of keeping any further appointments. He went directly across the road to Nortech and spoke to his employment consultant, Rychelle Burley. He was shaken and distressed. He handed her the offender’s business card and said, “Here is the psychologist’s card, I won’t be going again”. Burley asked what had happened and he told her. She took him directly to Coffs Harbour Police Station and he made a statement to a Senior Constable Adam Goodhand, as did Ms Burley. Senior Constable Goodhand noticed light red marks on the victim’s inner thighs, stomach and back.

92. Nearly a year later, Senior Constable Goodhand asked the offender to come to the station. He put to him that SL had complained of being indecently assaulted by him on 18 February 2015, the offender denied it, and no charge was at that point laid.

93. Counts 2 and 3 relate to the victim BS. Count 2, aggravated indecent assault, contrary to s 61M(2) Crimes Act 1900, with a maximum penalty ten years and a standard non-parole period of eight years; Count 3, grooming a child under 14 years of age, s 66EB(3) Crimes Act 1900 with a maximum penalty of 12 years.

94. Between early 2015 and 13 March 2017 BS, then aged between ten and 12, attended psychological sessions with the offender at Kimberley House in Coffs Harbour. BS’s parents were separated and he suffered anxiety. The school counsellor recommended that he see a psychologist. The family GP referred BS to the offender.

95. The appointments were often at the end of the day or on Saturday afternoon. BS’s father would drop him to the appointments and wait for him in town. On the first appointment, the only one his father attended, the offender told him not to ask BS anything about what happened in the sessions. The father estimates that BS had in excess of 30 appointments, and that he got at least three GP referrals for ten visits each.

96. Count 2 occurred in the following circumstances. During one session early in the counselling relationship the offender asked BS if he was worried about anything and BS said he was worried about some moles on his back. The offender offered to check the moles and BS lifted his top and sat facing away from the offender.

97. The offender placed his hands on BS’s bare back and moved his hands around to different parts of his body. He moved one of his hands onto BS’s thigh, then groin area, before touching his penis over his clothing. BS felt uncomfortable and covered his groin area with both hands. The whole period of touching lasted for about five minutes. The offence was aggravated because BS was under the age of 16 years, namely ten to 12 years.

98. Count 3, during three or four sessions around the middle of their counselling relationship the offender told BS to sit next to him at a desk while he showed him numerous pornographic videos on a computer. During one of these sessions the offender took a tube of lubricant from a small cupboard next to the lounge and showed it to the complainant. The offender put some of the lubricant on his own hand and made BS feel it. The offender showed BS the indecent material with the intention of making it easier to procure BS for unlawful sexual activity with him.

99. A tube of lubricant was found in a cupboard in the office by Eileen Moore, who shared the room with the offender, in November 2016, along with some bottles of beer and some condoms. She texted a message to the offender about this and he texted a message back that they had been used by him in a sex education counselling session with an ASP teenager and his parents.

100. In another session BS sat on the lounge while the offender sat on a chair looking at the computer. The offender took his penis out of his pants and masturbated with his right hand for about ten minutes in view of BS. That is the offence particularised in the Form 1 which attached to count 3. This offence is contrary to s 61O(1) Crimes Act 1900 with a maximum penalty of imprisonment for five years. The circumstance of aggravation attracting the application of that provision was that BS was under the offender’s authority by virtue of his status as a patient receiving psychological care.

101. One day BS mentioned to his father that the offender had told him that it was okay to masturbate and that he needed to get the moles on his back checked. His father responded, “What are you talking about in there and why was your shirt off?” But then immediately said, “Sorry, I’m not meant to ask”.

102. Thus are described the facts relevant to count 2 of indecent assault arising from the touching of the boy’s penis over his clothing, and count 3, the conduct in which he groomed the boy with the use of the indecent material.

103. Count 4 and count 5 are allegations made in respect of the victim BL. Count 4 is an aggravated indecent assault contrary to s 61M(2) Crimes Act 1900, with a maximum penalty of imprisonment for ten years and a standard non-parole period of eight years. Count 5 is an offence of grooming a child under 16 years contrary to s 66EB(3) Crimes Act 1900, the maximum penalty is ten years without a standard non-parole period of four years.

104. BL’s parents separated when he was eight years old and were involved in acrimonious court proceedings over his custody that extended for many years. He developed depression, experienced suicidal ideation from the age of eight, and saw various mental health professionals from when he was nine.

105. When he was 14 years old and in year 9 a school teacher told him if he did not see a psychologist he would “end up in a mental ward”. His mother was recommended to the offender by a friend of hers whose son was seeing him. This it appears is a reference to the mother of the school teacher, though I am unsure, and in any event the referral question is of little significance.

106. For seven months between February and September 2016 BL, aged 14 to 15 years, attended over 30 psychological sessions with the offender at Kimberley House in Coffs Harbour. His mother would occasionally sit in but more usually would drop BL off and pick him up. The sessions were mostly on Saturdays, frequently for several hours.

107. The offender often asked BL about his sexuality, encouraging him to have sex with his girlfriend, to keep an open mind about his own sexuality and try fellating men, and to try sex with older people. During one of the first sessions the offender suggested that they go to a nude beach together. He also said this to BL’s mother at one stage, saying it was a treatment for body dysmorphia. On one occasion when they went to Woolworths the offender also bought condoms.

108. Count 4, the allegation of indecent assault upon a person under the age of 16 years occurred in the following circumstances. During one session BL told the offender about a medical concern he had with his testicles. The offender asked to see and BL refused. Some sessions later the offender asked again and BL removed his pants and underwear and stood next to the offender who was seated on a chair. The child showed him his testicles. The offender touched BL’s testicles with his hand and rubbed the skin of his testicles between his thumb and index finger for about 15 seconds. BL pulled his pants up and sat on the lounge.

109. In September 2016 the offender wrote a report back to the GP about his mental health progress and noted, “B has some sensitive health concerns...a left testicle that shows signs of damage and permanent swelling”. This offence was aggravated because BL was under the age of 16 years, namely 14 years, the child turned 15 in August 2016.

84. Count 5 occurred in the following circumstances; this is the offence of grooming a child for unlawful sexual activity. During another session in the first half of June 2016 BL returned from the toilet to find the offender had moved to the lounge, where BL had been seated, and was watching a pornographic video on a laptop computer. The offender showed him two pornographic videos for about five minutes. They sat close together on the couch. BL told the offender he was “not into that stuff”.

85. The offender then got up and sat in his usual chair that faced the lounge and continued watching pornography as BL spoke with him. The offender showed BL the pornography with the intention of making it easier to engage in unlawful sexual activity with him. BL was 14 years old at the time.

86. BL was admitted to Coffs Harbour Mental Health Unit on 14 June 2016. After the admission the appointments resumed, mainly on Saturdays, and continued to be long.

87. On 22 July 2016 the offender texted to BL’s mother the time of the forthcoming appointment as 2pm to 5pm on Saturday 23 July 2016. BL’s mother queried the length of the three hour appointment. The offender replied by text, “Yeah. I know. We are having something of a breakthrough in relation to past events. I’m really sorry. Please bear with me. Craig.”

88. The offender took BL for coffee or sushi during the appointments after his mental health admissions.

89. During another session BL went to the toilet and when he came back the offender was sitting in his chair naked from the waist down with a laptop computer covering his penis. The offender sat with no pants on for two to three minutes before he pulled his pants back up, exposing his penis thereby to BL as he did so. This is the offence on the Form 1 for count 5, committing an act of indecency towards a child less than 16 years of age, in the circumstance of aggravation that he was under the authority of the offender by reason of his status as a patient. The maximum penalty for this offence is imprisonment for five years.

90. Around September 2016 BL heard something about the offender which caused him to decide to stop treatment. In February 2018 BL was contacted by police as they had found his file in the suitcase in the offender’s house. BL was reluctant to make a statement.

91. [3] The next victim dealt with in these facts is JM, in respect of which the offence is charged in count 6 of aggravated inciting an act of indecency, s 61O(1A) Crimes Act 1900 with a maximum penalty of imprisonment for three years.

    3. The Crown at this point rose to correct my indication of percentage discounts to be applied to the sentences indicated as appropriate for the individual offences, and discussion followed. The correct discounts were applied to the indicated sentences toward the end of the judgement resumed on 7 September 2020.

92. In 2016 JM, 23 years of age, was looking for employment with Nortech Employment Agency in Coffs Harbour. He was experiencing depression that was hampering his search so Nortech referred him to the offender.

93. Between August 2016 and January 2017 JM attended ten psychological sessions with the offender at Kimberley House in Suite 215. The victim’s problem was depression. The offender suggested it was body consciousness and suggested he needed to be naked in their sessions and work up to a visit to a nudist beach. The offender said he had taken other patients to a nudist beach.

94. At one session the offender told JM to take his shoes off and to unbutton his shirt and pants. JM complied. At the next session the offender told JM to strip to his underwear. He did so and spent that session wearing only his underwear. The offender said JM would need to be naked on the next session.

95. On the next session the offender directed JM to undress completely. The offender then told JM to stand in front of the window and look at his surroundings. JM stood naked at the waist high window to Suite 215 which overlooked Little Street and the Fire Station. JM told the offender he felt anxious about being seen. The offender said he would have to continue getting naked during the sessions until he felt comfortable.

96. The Form 1 to count 6 has as the additional offence the incitement to aggravated indecency of someone 16 or over; and this is the first event when he had him stand naked in front of the window.

97. The conduct on which count 6 is brought is then described. At the beginning of another session the offender again instructed JM to remove all of his clothing and stand at the window naked. This he did for about ten minutes, and this was the last occasion that JM undressed during sessions.

98. The offence is aggravated because the victim was under the authority of the offender, under his care for psychological treatment for depression, and liable to follow, and did follow, directions of the offender insofar as he believed they related to his treatment.

99. JM told his mother that the offender was asking him to get naked due to body issues and his mother replied, not unreasonably, “That’s weird”.

100. In addition to directing JM to undress the sessions were sexual in their content. The offender spoke of his own sexual preferences and suggested that JM could be gay or bi-sexual.

101. On 2 March 2018 police contacted JM as a result of finding his file in the suitcase.

102. The next victim is NS; in respect of him counts 7, 8 and 9 were charged. Count 7, aggravated indecent assault, contrary s 61M(1) Crimes Act 1900; the maximum penalty is seven years imprisonment with a standard non-parole period of five years.

103. Count 8, aggravated indecent assault, is contrary to the same provision. Count 9, another aggravated indecent assault, is contrary to the same provision.

104. NS suffered depression and anxiety from childhood. He had witnessed extensive domestic violence. From the age of 17 his condition worsened and he saw a number of different counsellors, never staying with any one due to his transient lifestyle.

105. In 2016 his GP referred him to the offender. He saw the offender weekly at his room in Nambucca Heads over a nine month period between 1 September 2016 and June 2017. NS was 25 years of age.

106. He was not seeking treatment for sexuality problems, however in one of the early sessions the offender suggested NS try bi-sexuality, saying such things as “Everyone should be bi-sexual. Anyone who says they are straight or gay are psychotic.” And, “You need to be open with your girlfriend. If she wants to bring home another guy to have sex, you should let her”.

107. During one session the offender told NS about a group session he was organising at a nudist beach in Coffs Harbour with other clients and asked if NS could attend. NS mentioned this to his mother.

108. Early on in the counselling relationship the offender suggested exposure therapy treatment explaining that it involved getting naked during sessions. This began with NS removing his top for a few sessions. He was so anxious he was dripping sweat from his armpits but trusted the offender who represented that it was proper therapy.

109. After that there came a session when the offender directed NS to remove his pants as well and NS stood in the corner of the room for the balance of the session. The offender rubbed his chest, and arms and back, and underneath his arms. The offender said it was part of his therapy for special anxiety. This is the conduct for the Form 1 offence attaching to count 7. This allegation to be taken into account is that he was massaged whilst his underwear was on, contrary to s 61M(1) Crimes Act1900 with the aforementioned penalties attaching were it prosecuted separately.

110. Count 7, the following week NS told the offender about a fight he had with his mother. The offender directed NS to strip completely naked and stand in the corner; he complied. The offender massaged his chest, arms and neck. NS flinched when the offender touched his neck and said that he “really didn’t like people touching his neck”. The offender said, “Oh good”, grabbed NS’s neck with his hand and said, “How does that make you feel?” NS replied, “Fucked”. The offender told NS to turn around and rubbed his shoulders, lower back, buttocks, and backs of his thighs.

111. This misconduct is aggravated because NS, 25 years of age, was under authority of the offender, aged 50, as the offender’s patient. He was under the offender’s care for psychological treatment and prone to follow directions so far as he believed they related to the treatment, such as the undressing for the purposes of exposure therapy.

112. NS ruminated on this for a few days then told his mother and girlfriend that the offender was making him get naked although he did not tell them that he was being touched. His mother was taken aback, but NS assured her it was therapy.

113. One day NS arrived early for a session and bumped into the offender at the front door of the CHESS building in Nambucca Heads. The offender invited him to get coffee and they walked down towards the main street. As they approached the toilets next to the library the offender said, “This is where we will do our therapy today. I would like you to get naked in there.” He told NS to take his clothes off inside the toilet block and come out of the block naked. He complied. The offender kept watch outside and encouraged NS to walk out away from the toilet block where he remained for a short period. There was no one about. Afterwards they bought coffee and returned to CHESS for a session, where NS remained clothed.

114. This offence of inciting a person over 16 years of age to commit an act of indecency in circumstances of aggravation is the other offence on the Form 1 to count 7. It is contrary to s 61O(1A) Crimes Act 1900 with a maximum penalty of three years.

115. In February 2017 NS went away for a trip with his girlfriend and afterwards he had about five more sessions. The conduct on which count 8 is brought occurred in one of those sessions. NS stood naked in the corner of the room as the offender rubbed his body. Towards the end of the session the offender tapped NS’s testicles with an open hand.

116. At the next session in May 2017 the offender directed NS to undress and played a pornographic video for him as he sat on a chair in a corner of the room. The offender rubbed NS’s legs, thighs, arms, chest, back and neck. NS’s penis started to become erect. The offender grabbed NS’s penis with a closed hand and rubbed up and down with his hand for about 30 seconds. NS told the offender to stop, and dressed.

117. This was the last session, thereafter the offender cancelled, telling NS he was in Sydney. The truth was he had been de-registered as a consequence of HK’s complaint.

118. The conduct which I have just described is that which grounds count 9 on the indictment.

119. In November 2017 NS saw media releases, concluded it was the offender, and texted his mother:

“I think that Craig was seal (sic) abusing me through our council (sic) sessions, Mum. A 51 year old physiologist was arrested in May this year for abusing clients in Coffs, around the same time he stopped seeing me.”

146. His mother called him. He was crying and struggled to speak.

147. NS rang CHESS Employment at Nambucca Heads and told his employment counsellor what had happened. At that time Detective Furyk was there investigating SU’s complaint and CHESS referred NS to her; he made a formal complaint on 27 November 2017.

148. The next victim is CA, the subject of counts 10 and 11. Count 10, grooming a child under 14, is contrary to s 66EB(3) Crimes Act 1900, the maximum penalty is 12 years, with a standard non-parole period of five years.

149. Count 11, act of indecency towards a child under ten, contrary to s 61O(2) Crimes Act 1900, the maximum penalty is seven years.

150. In 2016 CA, aged nine, was in the care of his grandmother while his mother dealt with drug and mental health issues. The offender was seeing the mother and grandmother as patients and offered to see CA as well. Between April 2016 and March 2017 CA attended 13 sessions with the offender at Nambucca Heads. His grandmother would wait in the foyer of the CHESS rooms.

151. Count 10 was brought upon the following facts. From about half way during the counselling relationship the offender started showing CA pornographic videos. During the last session on 6 March 2017 the offender showed CA three pornographic videos on his laptop computer for about 30 minutes viewing time. He did so with the intention of making it easier to have unlawful sexual activity with CA, then nine years old.

152. Count 11 arose in the following circumstances. While the videos were playing the offender took his penis out of his pants and began rubbing it up and down with his hands. He was at the same time telling CA about masturbation. He asked CA to take his pants down but the child refused. He continued to masturbate his own penis.

153. In February 2018 police contacted CA’s grandmother and she in due course spoke to CA who subsequently made a formal complaint to the police.

154. The next victim is HK. Count 12 relates to him, aggravated indecent assault, contrary to s 61M(2) Crimes Act 1900. The maximum penalty is ten years with a standard non-parole period of eight years.

155. HK was born in 2006 and was 11 years old at the time of the offences. His mother sought psychological treatment for HK and his six year old brother A. She was told he specialised in treating childhood trauma. HK had only one appointment, Saturday 13 May 2017, at Kimberley House.

156. The mother took both boys to the session. She spoke first of all with the offender about her son’s issues and gave the offender a USB which contained some naked photos of the boys so that he could see the rashes on their bodies, which was one of the reasons she was seeking treatment for them. HK then had his session alone with the offender. HK’s mother and A waited in the adjoining waiting room; the door to the offender’s room was closed.

157. About ten or 15 minutes into the session the offender asked HK to sit on the floor and show him the rashes on his back, HK did so. The offender pulled his shirt up and drew on his back with his fingers where the rash was, then rubbed and massaged his back, moving down inside the back of his pants, and massaging his buttocks. He asked HK if he felt nervous. He moved his right hand around to the front of HK’s body and massaged his penis over his pants.

158. Six year old A was bored and opened the door to the consult room. He and his mother saw the offender and HK seated on the floor. The offender quickly pulled the shirt down and called out, “Just a second”. HK’s mother closed the door and remained in the waiting room. After a few minutes the offender resumed the massage including in it the buttocks and crotch area, telling HK he wanted to see him more often.

159. That is the conduct relevant to the Form 1 offence of massaging, amounting to an aggravated indecent assault; the maximum penalty is ten years with a standard non-parole period of eight years. The offence is aggravated because of the age of the child under the age of 16 years, namely 11 years.

160. Afterward as they were walking to the car park outside the building HK said to his mother, “I never want to see him again”. He said he did not want to talk about it in front of A. In the car on the trip home and later at home he told his mother what had happened. She called the police. They attended the house and took the clothes HK had worn to the session. DNA matching the profile of the offender was found on the inside of the back of the waistband of pants HK had been wearing.

161. On 22 May 2017 HK’s mother attended the offender’s Coffs Harbour office whilst wearing an authorised listening device. She had a conversation with the offender in which he agreed that he had been sitting on the floor when the door was opened and that he had said he would be out in five minutes. He initially said that HK was sitting on the lounge, but then said he was sitting on the floor. He said that HK had shown him some of his rashes and that he may have asked him to do so. He denied massaging HK and said he had touched him on the back.

162. On 29 May 2017 police attended Kimberley House and placed the offender under arrest.

163. The next victim is SU in count 13. The offence is grooming a child under 14, contrary of s 66EB(3) Crimes Act 1900. The maximum penalty is 12 years with a standard non‑parole period of five years.

164. SU was born in 2007 and was nine years old at the time of the offending. His mother sought psychological treatment for him to deal with grief and trauma from the sudden death of his father in 2016. She was referred to the offender by a social worker.

165. SU had only four sessions with the offender, on 3, 13, 17 and 24 May 2017. The session on 13 May 2017 was at Kimberley House in Coffs Harbour, and the other sessions were at the CHESS office in Nambucca Heads.

166. In the session at Coffs Harbour SU’s mother and her fiancé sat for a while and then went for a walk around town, re-entering the building with a pass the offender had provided. They sat in the waiting area outside the closed door to the consultation room.

167. When the offender was alone with SU he asked him if he wanted to draw a picture of a penis and handed him a lined palm card and pen. The complainant drew a stick figure first with a long swirly penis and another stick figure with the head close to the penis. The picture was later seized by police in the first search warrant inside SU’s file.

168. The last two sessions were at the CHESS rooms at Nambucca Heads. SU’s mother was waiting in the foyer during the session and could not see inside the room.

169. In one of those sessions the offender asked the complainant if he wanted to see a photo of a penis. The offender opened a folder on his laptop computer and scrolled through numerous photos. He showed the complainant three photographs of a penis. He opened a video file on the computer and showed SU a video of a man wearing gloves while touching another man’s penis. He asked SU, “Do you like that?” SU said he did. SU asked, “Is that really what they do?” The offender said “Yes”. The offender showed SU the pornographic material with the intention of making it easier for him to have unlawful sexual activity with SU.

170. Photos of penises and numerous other pornographic photographs were found on the offender’s black Acer laptop upon analysis by police, as well as on a laptop belonging to Eileen Moore, which the offender used in Kimberley House. The offender’s black Acer laptop showed evidence, on analysis by police, of an external drive which had been used to play videos with pornographic titles.

171. During the same session when the offender showed SU the pornographic video the offender took SU’s finger and rubbed his encircled fingers up and down it in a manner suggestive of sexual intercourse. He said, “Do you know what that means?” And SU said “Yeah”, and thought it referred to humping.

172. That is the conduct on which the offence included in the Form 1 for count 13 is brought, aggravated indecent assault with a maximum penalty of eight years imprisonment and a standard non-parole period of eight years, contrary to s 61M(2) Crimes Act 1900.

173. About this time SU’s mother read in the newspaper that a 50 year old psychologist had been arrested in Coffs Harbour in relation to offences upon a child.

174. On 18 October 2017 SU and his mother’s fiancé were driving SU to see a new psychologist. When SU said he wanted to see the offender they told him that he could not because he may have been in trouble for inappropriate behaviour with children. They asked whether the offender was ever inappropriate with him. He denied it in the car but later that night at home told his mother what had happened.

175. On 19 October 2017 SU’s mother contacted the police and on 2 November 2017 SU made a formal complaint.

176. There are supplementary facts included in the bundle. These are, as I understand it, as a consequence of the decision not to contest some of the facts on which the Crown wished the matter to proceed, thereby obviating the need for the Court to make a determination upon those matters.

146. The first topic in this document relates to the victim BL. From early in the counselling relationship the offender would buy alcohol for BL and they would drink it together. This began one day when BL said he felt depressed and the offender took him out to buy a bottle of liquor and a packet of lollies at a local Woolworths. They returned to the office and drank the entire bottle of Jagermeister mixed with Red Bull. BL was intoxicated by the end of the session. He ate the Minties, the lollies that were purchased, to disguise the smell of the alcohol from his mother.

147. This became a regular pattern. BL would be allowed to take any leftover alcohol home. BL’s mother found two bottles of spirits in his bedside cupboard.

148. On one occasion when they went to Woolworths to buy alcohol the offender also bought condoms. When they returned to the office the offender asked BL if he wanted the offender to show him how to use a condom. BL refused.

149. In November 2016 Eileen Moore found condoms, lubricant and beer in the office.

150. The offender is said to have always had some sort of story in relation to his past. These included that he had connections with influential people including police officers and people on the board of directors of psychology, and that he had been a major in the US Army and had shot people for disobedience. This made BL reluctant to make a formal complaint to police; that the offender had connections that could cause harm.

151. In addition to giving BL advice about his sexuality the offender offered to take him to a brothel. He also offered to take him on holiday.

152. The offender often spoke about his own sexuality and sexual experiences to BL. He told BL he was bi-sexual. He discussed the historical importance of paedophiles as protectors of orphan children.

153. After committing the offence charged in count 4, that was rubbing BL’s testicles, BL saw the offender to have an erection.

154. The further supplement is in respect of the victim CA. After committing the offence charged in count 11, masturbating in front of this victim while telling him about masturbation, the offender ejaculated. CA witnessed this and saw the offender rub the semen into the head of his penis.

155. Further material included in these facts is of photographs of the CHESS employment facility in Nambucca Heads. This depicts the doorway to two rooms. Inside of those rooms there are desks and chairs. The next photograph is a closer image of the open doorway into one of the rooms. By comparison with the earlier photograph it is the doorway on the left of the photograph in the first image. The next photograph is a room within CHESS employment in Nambucca Heads.

The Significance of the Standard Non-Parole Periods

187. As I noted, 11 of these offences have standard non-parole periods and these must be brought to account in the determination of sentence.

188. The provisions introducing standard non-parole periods are set forth in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999, in their present form, after amendment by Parliament following the decision of the High Court of Australia in Muldrock v The Queen (2011) HCA 39. Section 54A(1) provides that the standard non-parole period for an offence is that which is included in the table to the provisions. I have already specified the individual standard non-parole periods for each of the offences to which these provisions relate.

189. Section 54A(2) provides that the standard non-parole period represents the standard non-parole period for an offence that falls within the middle of the range of objective seriousness taking into account only the objective factors affecting the relative seriousness of an offence.

190. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required, or permitted, to be taken into account.

191. Section 54B(3) requires that the Court record its reasons for setting a non-parole period that is longer or shorter, identifying each factor taken into account.

192. The objective gravity of this offending in respect of which there are charges with a standard non-parole period will be assessed upon consideration of objective factors affecting the relative seriousness of the offence but without reference to matters personal to the offender, or class of offenders, but wholly by reference to the nature of the offending bringing to account relevant factors provided in s 21A of the Act, except for those that are essential elements or integral characteristics of the offence.

193. This statement must be read in light of the guidance that has been provided by Johnson J in Tepania v R [2018] NSWCCA 247.

194. The fixing of the non-parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial, and regardless of whether the offence falls within the low, middle, or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical, or staged, or tiered, process of reasoning when assessing appropriate sentence, but must identify all relevant matters bearing upon the question of the appropriate sentence, in the process of intuitive synthesis discussed, for example, by McHugh J in Markarian v R [2005] HCA 25.

195. In the determination of sentence for offences for which there is specified a standard non-parole period it and the maximum penalty are legislative guideposts for the sentencing courts along with other established sentencing practices and by reference to matters identified where relevant in s 3A, 21A and 22 of the Act.

196. Where an offence is found to be objectively in the middle range of objective seriousness it does not follow that the standard non-parole period will necessarily apply, because the ultimate sentence is determined, as I have said, on the synthesis of all relevant matters including the objective circumstances and the subjective material that is considered by the Court, and if it is accepted.

197. In Tepania ibid Johnson J sought to explain the interaction of that legislation and the common law principles. At para 110 his Honour summarised the import of the provisions to which I have referred, consistent I expect with what I have already said. He discussed in para 111 the amendments and what they were intended to achieve with reference to the second reading speech and the explanatory memorandum from the Attorney General, which appears, his Honour said, “...to have been to clarify and simplify the process of sentencing for standard non-parole period offences”.

198. His Honour then continued:

“111...The amendments were not intended to expand factors under s 54A(2) so as to include in the abstract or notional concept of a standard non-parole period features which were personal to the offender, whether connected to the commission of the offence or more generally. If that was the statutory purpose, clear words would have been required to achieve it, particularly in light of the construction given to the section in Muldrock v The Queen. Further, such an approach would have granted a concept of indeterminate meaning which would obscure, rather than assist, the sentencing process.

112 In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation, or non-exculpatory duress, may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with, or materially contributed to, the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence;...”

199. His Honour cited various authorities supporting these propositions, and then went on in para 113 to discuss the concept of moral culpability and with regard to the use of the term in Veen v The Queen (No 2) 1988 HCA 14. The Court was there concerned with mental abnormality that might diminish moral culpability and the extent which an antecedent criminal history might illuminate moral culpability.

200. His Honour went on to further discuss Muldrock v The Queen [2011] HCA 39 and Munda v The State of Western Australia [2013] HCA 38, and spoke to the impact upon an offender of the environment in which the offender might have evolved particularly through formative years. Although within the context of indigenous offenders and communities in which the use of alcohol is common the statements of principle apply generally to people who have had a difficult time as they progressed from childhood to adulthood through the formative years in their life.

201. His Honour quoted from Bugmy v The Queen [2013] HCA 37 the judgement from the plurality where the following appears at para 44:

“Because the effects of profound childhood depravation do not diminish with the passage of time and repeated offending, these rights speaking of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment, giving weight to the conflicting purposes of punishment is what makes the exercise of a discretion difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability, or the inability to control an impulse, may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

202. At the appropriate time I will be required to indicate for each of the offences, including those with a standard non-parole period, where the misconduct should be placed on the scale of objective seriousness. As I indicated earlier, some of these offences are more serious than others and, on the synthesis of the facts relevant to each offence, and the subjective material that the offender has advanced, the Court will be called upon to determine an appropriate indicative sentence to specify what would have been, in the standard non-parole period offences, the non-parole period that would have been imposed if an aggregate sentence was not employed.

203. The observations, to which I have just referred, particularly in the judgement in Bugmy ibid, reflect certain of the purposes for which sentences of imprisonment are imposed articulated in s 3A Crimes (Sentencing Procedure) Act1999 which provides:

“The purposes for which a Court may impose a sentence on an offender are as follows:

1. To ensure that the offender is adequately punished for the offence,

2. To prevent crime by deterring the offender and other persons from committing similar offences,

3. To protect the community from the offender,

4. To promote the rehabilitation of the offender,

5. To make the offender accountable for his actions,

6. To denounce the conduct of the offender,

7. To recognise the harm done to the victim of the crime and the community.”

204. As is implicit and expressed in what was quoted from Bugmy ibid, and as has been said in other cases for example such as R v Engert (1995) 84 A Crim R 67, and in particular the judgement of the then Chief Justice of New South Wales, these purposes pull in different directions, and where moral culpability might be reduced, for example, by reason of poor mental health or other factors that might have reduced moral culpability, there remains the need to provide adequate protection for the community from the offender, and promotion of rehabilitation, which might counterbalance the impact of one or more competing purpose.

205. These are significant considerations in this case in the determination of whether there might be amelioration of the moral culpability involved in what was egregious misbehaviour against these unfortunate people who turned to the offender for help, and where he has sought to advance a history of his life which upon his case was significant in his offending, which over the passage of time was triggered by factors to which he was exposed in his work as a psychologist enlivening his memory of emotional, physical, and sexual abuse he claims to have suffered as a younger person.

The Offender’s Case

206. There are reports before me, and evidence from the authors of those reports, speaking to the history offered by the offender to each of them. Two, Dr Pulley, psychiatrist, and Ms Howell, psychologist, presented a sympathetic approach towards the offender in contrast to the opinions offered by Dr Elliott. I have indicated already that I have looked carefully at the representations from each of these witnesses and ultimately I found Dr Elliott persuasive in the opinions he has come to offer.

207. This case points up the difficulties that are presented to the Court when an offender has not given evidence of the facts represented to others, whereupon the Court is left with out of Court hearsay representations, the truth and accuracy of which cannot be assessed as would be the case with the opportunity to hear them given under oath or affirmation and tested by cross-examination.

208. In R v Qutami [2001] NSWCCA 353 Smart AJ said at para 58:

“There is one further observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.”

209. More recently the Court of Criminal Appeal in this State considered this point in Imbornone v The Queen [2017] NSWCCA 144. Wilson J, with whom Hoeben CJ at CL and R A Hulme J agreed, wrote the following at para 57:

“The Court has frequently said that untested out of Court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood, it seems necessary to restate it. The following statements are derived from the authorities:

1. Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at 58-59.

2. Statement to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the Court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; R v Elfar [2003] NSWCCA 358; R vMcGourty [2002] NSWCCA 335.

3. It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1. It is one matter for an offender to express remorse to a psychologist or other third party quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010) NSWCCA 314.

4. If an offender appearing for sentence wishes to place evidence before the Court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munroe v R [2006] NSWCCA 350.

5. Whilst evidence in an affidavit form from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127) generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, of a tangible expression of contrition, ‘to treat this evidence with anything but scepticism represents a triumph of hope over experience: R v Harrison [2001] NSWCCA 79.”

210. I announced my view of the evidence, particularly that of Dr Elliott by way of his report, and of the evidence delivered viva voce this morning, and invited attention to that part of the judgement from her Honour, and yet the matter remains with the offender relying upon the content of the representations attributed to him by the authors of the psychiatric and psychological assessment reports and sentence assessment reports, and information contained in a document provided by his sister.

211. It is more often than not that an offender does not give evidence in sentence proceedings, although as time continues it seems that more offenders are facing the task of entering the witness box to give evidence of facts upon which opinions have been formed. It must be said that in my experience of the offender having done so he or she is quite often found to be a competent advocate in his or her own cause. But in the absence of that evidence one is left with the documents and the task required of the Court is then to examine the material to look for bases upon which the representations attributed may be accepted. These are often found in the plurality of occasions where representations are made, and the circumstances in which the representations are gathered, for the opinions that are formed and expressed in the reports. There might be other objective material available to support those propositions in the material provided in the case. An example of that is an experience that the offender claims to have suffered at the hands of his father, when, if this occurred, he suffered extraordinary punishment. That event involving an episode of defecation, to which I shall make further reference when I review that material, is corroborated by what his sister provided in her document.

212. When I continue in this judgement on Monday with the opinion I have formed in relation to the objective seriousness of the offending, and where it should be placed on the scale of each case, I shall recount the guidance provided by Johnson J in the decision of Tepania ibid bearing in mind the observations made by Smart AJ in Qutami ibid, and by Wilson J in Imbornone ibid.

213. The history of the offender includes material that came from the United States provided in the Crown bundle, to which I shall refer when I make reference to his antecedent behaviour.

Victim Impact Statements

214. My next topic is to deal with the victim impact statements.

215. CA provided the impact of the experience he suffered in such a document. He writes of finding extreme disappointment in circumstances where a person in such a trusted position would abuse him so. He was the offender’s client and aged nine at the time.

216. It was because of a traumatic experience in the past with his mother that his grandmother suggested counselling and the family was referred to the offender. Rather than help, he sexually abused the child, which has contributed more trauma to his life. He feels betrayed and shamed. It has left him nervous, stressed and insecure, and he hopes that the offender will not get a chance to abuse a child, or any other person, ever again.

415. She acknowledged that he would be well qualified to know what that was from a professional standpoint. She acknowledged her accreditation as a counsellor for child sex offenders with whom she has been working since 1990. She worked with young people and adults.

416. She said she had done a lot of training and work overseas in 1989 and 1990. She spent several years in Canada, back and forth to Australia and to England, working with people, collecting data from prisoners in Canada and summarised the research she had embarked in those endeavours.

417. She provides treatment for people in the community. Her focus is not upon people who have offended against children, she works with people who have offended against children and people who have offended against adults.

418. She noted that the term “paedophilic disorder” is still not defined as a psychiatric condition in DSM-5 which seemed to give rise to some confusion, at least in her mind. She went on to speak about sexual orientation which we cannot change. There is reference to the definition of paedophilia to be rewritten in the DSM-5.

419. She was asked at p 50, line 13:

“Q. Right but there’s still a psychiatric condition of people who have a paraphilic disorder, surely.

A. They use it to categorise people who find children or particular individuals sexually appealing but the difficulty is that those individuals could be heterosexual or homosexual or bisexual, have an interest in children. So that’s one of the difficulties to then say that if you are attracted to a child then you would have a paedophilic disorder because your sexual orientation may not be of a primary interest, it may not be in children, but opportunistic often and so people who are homosexual, heterosexual, bisexual will still sexually assault and sexually abuse children and because that isn’t able to be clarified with absolute certainty this is a contentious issue under the review at the moment in America with DSM-5”.

420. She agreed that there are people who are attracted to children and offend against them. She agreed people on the street would call those individuals paedophiles, “that’s a word that does get bandied around”, she said. She continued at line 33:

“What I’m also saying though is that that person who may have sexually abused a child may be a homosexual man in a relationship or heterosexual man in a relationship, that is why it is very difficult to put the label “paedophile” in any categorical sense because sexual abuse is often opportunistic and the person may not in fact have an overwhelming desire to sexual behaviour with children but an opportunity arises and they’ve done that and that’s the difficulty”.

421. She was taken through the criminal history in Ohio, part of her report at p 9 where she said there was evidence of past sexual misbehaviour, which appeared opportunistic resembling aspects of his past abuse experience, and she confirmed that she was referring to his history in the United States. She identified him exposing himself to a juvenile, intentional but opportunistic behaviour. He exposed himself and masturbated on two occasions to a juvenile.

422. Then I asked:

“Q. Could I just ask you to explain to me what you mean by that phrase ‘opportunistic sexual behaviour’ because I should tell you the question I have is that the frequency and repetitiveness of the misconduct troubles me when one attaches that word to that pattern of behaviour”.

423. She replied at p 52, line 18:

“A. Yes, I understand. I think my discussion with him, Mr Baker was talking about his life at the time and his difficult relationships within his family with his parents, the way in which is life was going and his unhappiness with his life at that time. In my understanding from talking to him he was using the sexual behaviours to feel good about himself in some respects because sexual behaviour was reinforcing and normally people feel good at the time about that behaviour. It also struck me as opportunistic given the similarity of the behaviours to the things that happened to him when he was at boarding school. The boys engaged him in behaviour very similar to this, exposing themselves and having him masturbate himself in front of them. So to me there were two aspects of the behaviour linked together.

He could have done other behaviours, my sense of what he told me was this was linked to what occurred at school and he had been learning from that and at the same time it made him feel better about his life in general.

Specifically I think when he engaged in those behaviours. Is that response in answer to your question?”

424. I said I would ask a question and the Crown can build on it if she wishes.

425. My question at line 39:

“Q. The word ‘opportunistic’ might not readily apply to the analysis you’ve provided as opposed to [except] in the following way, that when circumstances presented to him as an opportunity that he might exploit.

A. Yes.

Q. He was motivated and engaged in the conduct and the pursuit of release because of underlying psychological issues to which you’ve referred. Does that summarise your position?

A. Yes, I would agree with that. I understand that it could be opportunistic. I’m talking about I guess I’m talking about I guess - I’m taking, and I think we’re saying the same thing, but I agree with you it is a response behaviour. He saw an opportunity and his own emotional state of mind I think and learning that comes from being the victim of sexual abuse as a child there is learning in that. We often don’t talk about it in that way, so it happened to him, he used that to help manage his emotional state at the time as presented to self and took the opportunity to do that”.

426. Then the Crown resumed with her questions referring to the 9 year old boy in Ohio in the United States. Ms Howell agreed that there was a measure of planning involved in that conduct with the qualification that one might see an opportunity, cogitate upon it only for a few seconds in some cases, and sometimes thereafter, within a pattern when the opportunity to have access to a child is available. For Mr Baker she said both of those scenarios were available to him at different times.

427. She was asked at p 53, line 19:

“Q. So in the US it looks like he moved from maybe some opportunities to a planned period of offending over five months.

A. Yes, and that didn’t go, can I say, if the opportunity continues to present himself he will continue to take advantage of it.

Q. And then for his two and a half years as an able psychologist in Coffs Harbour between 2015 and 2017 he had the opportunity presented to him by virtue of the patients that came his way?

A. Yes.”

428. She acknowledged she had seen the facts and the supplementary facts. She acknowledged that there was a measure of initiation on his part and the response to that encouraged him to maintain his behaviour.

429. Thus she advanced that there was a combination of opportunistic behaviour and the initiation of the circumstances in which that opportunity presented.

430. There was discussion about the dichotomy of sexual interest, one of homosexuality and the other in children. Ultimately that difference does not mean a great deal in the analysis of this matter. The fact is that he engaged upon what I find to be predatory behaviour with his patients, some of whom were adults and some of whom were children.

The Offender’s Sister

431. His sister provided a letter and gave a description of the family dynamics including her association with her siblings and the protection she offered her brother, the offender. He was subject to the same belittling, teasing, bullying and reprimands that she experienced from both parents. They seem to have been disciplinarians.

432. She spoke of her paternal grandfather having touched her inappropriately when she was very young, and how her mother had found that occurring and “he was tossed out of the house and it was never mentioned again”. There was a history of that same person molesting a cousin.

433. She then writes of having bathed with her father when he returned from work until the day her mother entered the bathroom and went hysterical. She realised later that he had an erection while holding her lying back against him. She has a vague recollection of the incident but she was about 4 years of age at the time.

434. There is reference to her being spanked for minor transgressions. Her father visited her in the United States of America after her mother died, and some incident where her father apparently, she said, deliberately knocked over a child on a skateboard.

435. Upon her description of events this was an upbringing which was less than ideal for children and to that extent the offender is offered support in some of the representations he has made.

Consideration of the Offender’s Case

436. As I sought to make clear on the earlier occasion when the matter was before the court, the onus of proof on all of these matters rests upon the offender. There is sufficient inconsistency in some of the propositions advanced by him as to make it difficult to find that he has discharged his burden in that regard; the Crown has in supplementary submissions pointed to the inconsistencies including the timeline of education.

437. With regard to findings of fact, the Crown notes that the offender asks the Court to find that he was sexually abused by his father from eight to 14, and at school including boarding school, and he suffered complex post-traumatic stress disorder and major depression at the time of the offending. These are to be established on the balance of probabilities.

438. There was no evidence given by the offender regarding these matters, and I agree that the Court should be slow to accept even on the balance of probabilities these propositions, noting that he lied to the Australian Regulatory Health Board repeatedly about his convictions in the USA, told Dr Gordon Elliott and Dr Pulley that he was not attracted to children, which is at odds I find with the offending that is charged here and historically in the United States of America.

439. He told Andrew Redden a Department of Corrective Services psychologist, of the least serious of his USA offending only, omitting the offence against the 9 year old child which saw him serve three years gaol. He omitted from the information given to Dr Elliott the full range of his offending in the USA. He gave a qualified description to Dr Pulley about the events in the United States, excluding from the information the serious fact that the victim was a child of nine.

440. He did not raise his history of trauma with his supervisor, which is reflected in other documents which I am to come. There is no means of checking the accuracy of the representations regarding the abuse by his father, nor is it possible to test the entirety of what his sister had to say in her letter.

441. My experience of psychiatrists and psychologists are slow to deny someone their account of child sexual abuse, but Dr Elliott had no such difficulty in this case, requiring corroboration in light of his assessment of the offender and his presentation.

442. As to the alleged sexual and psychical abuse in the boarding school; it’s not an uncommon feature of life in a boarding school for children to be bullies and to be bullied, but there are disparities in this case.

• He told the Department of Corrective Services, according to the case notes, that he attended three primary schools and one high school.

• He told Dr Elliott that he completed school to Year 12 at various schools, including boarding schools.

• He told Dr Pulley that after coming to Australia at age 6 he went to boarding school for much of the time. He said that from the age of ten to 13 he was subject to a lot of violence from the children at the boarding school, including an incident when he was 11 when he was nearly drowned. He said the abuse was worst at Carine School. The abuse stopped Year 11 and 12 when he was at a different campus.

• He told Ms Howell that he attended lots of schools, including boarding schools from around age seven and he was bullied by peers and older students. He struggled to stay at any school for any more than a year. He attended Carine High School from 1979 to 1983 when he completed his HSC. He said the 1979 year was the worst for his abuse.

443. The offender turned 13 in February 1979. According to exhibit one (in which the reports from Dr Pulley and Ms Howell are included) he started high school that year; he told Ms Howell and the DCS that he attended one high school, Carine High School, from 1979 to 1983.

444. The difficulty identified by the Crown is that Carine High School was not a boarding school. Carine Primary School, which only opened in 1978, which would have been the offender’s last year of primary school for the year he was in 12 years old, was never a boarding school. Furthermore, there were no government boarding schools for primary school children in Perth.

445. I find that this challenges the scope for the Court to find the offender truthful about that part of his history.

446. I am reminded of what is contained in the sentence assessment reports by Ms Brougham which required a second interview for assessment of remorse. Her observation was that he was more focused upon presenting himself as a victim rather than identifying with the experiences of his victims. I am reminded of the need for the supplementary statement of agreed facts because at one point it was intended to test facts upon which sentence was to be determined.

447. The Crown concedes that if there is evidence of a mental condition it may impact upon aspects of general deterrence, specific deterrence and denunciation, but am reminded of the evidence of Dr Elliott, which I accept. I am reminded of the evidence of Dr Pulley and the extent to which he stepped back from the original position that he offered. I am reminded of what he said to the victim, BL, that paedophiles are historically protectors of orphaned children, which is consistent with what one might hear from a paedophile.

448. If he was experiencing complex post-traumatic stress disorder and severe mood disorder, as was opined by Dr Pulley he was aware of these conditions at the time and set a treatment but decided against it feeling unable to take the time out to seek treatment, and yet embarked upon the misconduct that has brought him before the Court.

449. Dr Pulley acknowledged his report was prepared in some haste. He was not consulting any professionals with the conditions at all until they were illuminated after he had been taken into custody. There were no problems discussed of this nature with his supervisor, Warwick McClelland.

450. The first evidence was after he was charged on December 2017 when his GP wrote;

“he presented with work related issues which resulted in the patient developing DSM criteria for major depressive disorder and also developing PTSD”.

451. I agree with the Crown that if this man suffers from paedophilia, which I find he does on the material I have, it would not result in a moderation of the sentence because specific deterrence and protection of the community arise to have greater significance.

452. I should note that in addition to the further material provided by the Crown from the United States of America there is the document from Dr Jeremy Allen dated 13 September 2017, from which I have just quoted. There is a document from Graham Wimbridge, the manager of legal services, writing on behalf of the Department of Education in Western Australia confirming the status of the schools available in that State, and the statement from Warwick McClelland of 5 March 2020, who was the offender’s supervisor, to which I have referred.

453. In the offender’s case, without objection from the Crown, there is before me the material from Corrective Services confirming the incident where he suffered an assault; the documents that are tendered in a bundle for my assistance have been flagged at the pages upon which reliance is placed. These include:

• An entry Case Note on 19 December 2017 at 13:30 hours where he reports a lower back injury of the L5/S1, a condition with which he has been affected since 2006.

• On 24 December 2017 at 15:30 he was taken to the clinic after the assault documented in the Case Note Report.

• In the clinical notes of 2 February 2018 there is a record of his pain, the assault in custody aggravating his neck and back injury, and his use of Ibuprofen and Panadeine as well as the pending Valdoxan prescription.

• 28 March 2018 at 12.30 he attended for pain management for his neck and spinal injury.

• 19 April 2018 he reported pain and numbness in his left hand, numbness in his left fifth finger and pins and needles also in the left first and second finger and back pain in the lower back if he coughs or sneezes.

• On 29 August 2019 there was the note with the suicide plan found in a letter apparently under consideration if he was to receive a long sentence.

• On 3 January 2019 there is reference again to back pain, so too on 28 February 2019. The other entry was 2019, it is difficult to read.

454. I have had regard to the submissions raised by the Crown which correctly identify the complexity of the sentencing exercise. I agree that sentencing statistics are of relevant assistance in this case. I agree with the percentage discounts that the Crown has provided in the table, to which I earlier referred, upon the application of common law principles of 10% and that of 5% relevant to the others.

455. The Crown points to the following significant factors when assessing objective seriousness. He was a practicing psychologist; based on a lie it is submitted. His registration came through a false declaration. He failed to declare convictions in the United States for his past misdeeds.

456. There is a breach of trust in the patients and the parents of the child patients, and also a breach of trust to the medical profession generally and the specific discipline in which he was working. I agree that moral culpability is high in these circumstances. He was in the profession on a false premise and perpetuated the behaviour that would have prevented him from continuing.

457. The offending began early in his career as a psychologist. It was persistent over a period of 27 months, brought to an end when HK’s complaint was made to the police. There was abuse of his position of trust and authority in those offences where it is not an element of the charge.

458. Two of the victims, VL and SL, are said to have suffered particularly substantial emotional harm. I do not believe I am in a position to make that finding, but I would not have any difficulty in coming to the view that their emotional harm was significant in their cases, more so than in the others.

459. I have not overlooked, as the Crown has pointed out, that in the case of VL he was referred to the offender as a 14 year old boy. He had had suicidal ideation since the age of eight. He was extremely fragile. Unlike some of the other victims, for whom the offending covered a confined number of consultations, VL, because of his fragile state perhaps, was with the offender for seven months. He was admitted to a psychiatric unit during that time and was afterward returned to the offender’s care where the sexual misconduct continued. He was fearful of complaining. He was extensively groomed. I am reminded of his victim impact statement.

460. In the case of NS, he was an adult aged 25 with a history of depression and anxiety from childhood. He had a history of failed engagement with psychologists. He saw the offender for nine months. He suffered the humiliation of being made to regularly stand naked in the consultation rooms when other workers were nearby and once in a public park.

461. His physical response, sweating profusely from his armpits from anxiety, demonstrates the harm he suffered. He was trying to maintain a relationship with a girlfriend while the offender appeared to be attempting to change his orientation.

462. The Crown has helpfully provided a table with the percentage discounts applicable in each case and the opinion given as to where on its range of objective seriousness the offence needs to be placed. I have reviewed the facts in this matter on more than one occasion and I agree with the opinions reached and the submissions thereon.

454. It is always a matter of judgement where one places an offence on the scale of objective seriousness but having had the opportunity to review the material and review this table I am satisfied that the Crown has correctly done so.

455. There was also tendered in the case for the offender the case note reports from Corrective Services which provide greater detail upon the occasions when he attended for assistance after the assault.

456. The submissions that have been made on behalf of the offender accept the seriousness of his conduct, the multiplicity of victims, and the opportunity that presented to him upon the embarking of psychology. I do not find that he entered that field for the purposes of exploiting opportunities that might have been presented to him but once he undertook the practice of psychology he was not reticent in exploiting those situationally vulnerable people who went to him for assistance in managing their fragile state.

457. Although the submissions refer to the Crown having argued that he did enter the field of psychology for this purpose, the Crown has disavowed any such notion. I agree that the past offending does not aggravate the objective seriousness of the misconduct or the sentences to be determined, but it informs the extent to which leniency would have otherwise been provided and addresses the question of specific deterrence and the need to provide protection from the offender.

458. I note that he has not offended between the last sequence of misconduct in the USA and here though the offences with which I am dealing with here today were over extended time.

459. I am not satisfied that the risk of reoffending is low. I am satisfied that there is the risk that he might reoffend, consistent with what Dr Elliott has had to say. It might be that with adequate management he might be persuaded to desist or manage his proclivities but he has not until he came into custody for these offences expressed any indication that he would be looking for the opportunity to rehabilitate.

460. The question of his vulnerability in the system does not attract a great deal of weight. He is on protection I am told, but there is nothing before me as to what more significant limitations might impact on his circumstances. There is nothing before me regarding why he was attacked to explain any connection between his charges and that event.

461. Moreover, having performed this task for as long as I have, having seen the number of offenders who have passed through the Court system to go to gaol, there many of the populace serving sentences for child sexual offences and sexual assault offences generally, and I am satisfied that although he might have fear, consequences from his misbehaviour, his management in gaol can be such that any risks are kept to a minimum.

462. I accept the evidence regarding his back injury. I accept that part of his health will impact upon the punishment that he is going to suffer.

463. I am not satisfied on the evidence that I have that there is such a causal link between what he claims to have occurred to him in his formative years and the misconduct upon which he engaged in the sequence of his behaviour.

464. I am not satisfied that he has demonstrated adequately remorse in this case. He vacillated between his pleas of guilty entered before me and then an indication to pursue an application to reverse those pleas, change lawyers, and at one point there were to be contested facts in some of the material that was before me.

465. I find that there are special circumstances. He does need assistance in the community once he has finished the custodial component of the sentence I am about to impose. It is his first time in custody. That of itself does not justify finding special circumstances but I have had regard to his age, the length of time that he will serve in custody for the custodial component of his sentence and the need for reintegration back into the community.

466. I have taken into account the offences on the Form 1 documents and I will certify them accordingly.

The Sentence

476. I will announce the indicative sentences for each matter including the discount that has been applied for utility. I have already rehearsed in detail the facts of each of the offences. Drawing upon the table the Crown has provided helpfully, I can identify each event.

477. For the first count in the indictment, involving the complainant SL, aged 20 years, the offence charged of being aggravated indecent assault contrary to s 61M(1) Crimes Act 1900, the allegation that he acknowledged is that he massaged the victim from his shoulders down to the back of his hips and back up before moving his hands to the front of the victim’s stomach and chest area before eventually down to his shorts. His right hand was put into the right pocket and the offender massaged the victim’s groin. He put his left hand down the front of his shorts and inside of his boxers and took hold of his penis causing an involuntary erection. He moved his hands from the shorts and massaged both legs on the outside of his shorts and inside of his thighs, his testicles and his buttocks. The victim, as with all of these victims, was in what I would refer to as a situation of vulnerability by reason of the need for psychological counselling and assistance to address their particular fragility with which they were burdened, in the course of which he exploited them for his own sexual gratification. He has not said, nor could it be said, that there was any therapeutic benefit motivating the offender in this egregious behaviour. I agree with the assessment that this offence is about the midrange. I agree that discount of 5% is to be applied. The maximum penalty is imprisonment for seven years, with a non-parole period of five years.

478. For this offence the sentence that I have settled upon is a non-parole period of 2 years with a head sentence of 3 years, 1 month and 1 day. Thus the sentence is one of 3 years, 1 month and 1 day, with a non-parole period of 2 years.

479. For the second offence on the indictment involving BS, aged ten to 12 years, the allegation is of him having massaged the child, including the child’s penis over his clothing. He had told the child’s father not to ask BS about what happened in the sessions. There were some 30 appointments involving three referrals from a general practitioner. He placed his hands on the child’s bare back and moved his hands around to different parts of his body, he moved one of his hands onto his thigh and then groin before touching his penis over his clothing. I agree that this is an offence above midrange and the indicative sentence for this is one of 3 years, 6 months and 22 days with a non‑parole period of 2 years and 3 months, against the maximum penalty of ten years, with a standard non-parole period of eight years [8] .

     8. The discount specified for this count can be found at para 257

480. Count 3, grooming of this child by showing pornographic videos. In respect of this there is a Form 1 with an offence of aggravated indecency whilst the child was under the authority of the offender. The offender had the victim sit beside him at desk while he showed him numerous pornographic videos on the computer. He took a tube of lubricant from a cupboard, showed it to the victim, put lubricant on his hand and had the victim feel it. The purpose of the exposure of the pornography was to facilitate procurement for an unlawful sexual activity. The lubricant and condoms were found there by a colleague. The offender represented their presence as being for the purpose of sexual education. The Form 1 offence involved him taking out his penis and masturbating with his right hand for about ten minutes in front of the child.

481. For count 3, taking into account the Form 1 offence, against the maximum penalty of imprisonment 12 years, with a non-parole period of five years, I specify a sentence of 3 years, 3 months and 27 days with a non-parole period of 2 years and 3 months [9] .

     9. The discount specified for this count can be found at para 257

482. Count 4, VL is the victim aged 14 years. The allegation is that the offender rubbed this boy’s testicles. This occurred within the context of seven months of grooming with alcohol. There was to be a disputed hearing of fact. There was seven months of sexualisation masquerading as psychological treatment; I agree with that observation. There was the intimation offered of the offender having an objection of authorities. The victim suffered emotional harm which I would find significant and was vulnerable because of his fragile mental state. The facts speak to greater detail. For this offence, count 4, for which the maximum penalty is imprisonment for ten years with a standard non-parole period of eight years, I specify a sentence of 5 years, 8 months and 12 days and a non-parole period of 3 years. Once again the discount given to this was 5%.

483. Count 5, grooming of this same boy, showing pornography, exposed his penis to the child. There was unlawful sexual activity as a result of the grooming but the offence only required that this be the intention. The grooming was followed by the exposure to the child. It was in the context of seven months of sexualisation, of alcohol use and other conduct. This was a matter that was to be the subject of contested fact hearing.

484. For the first offence to which I referred in respect of VL the Crown has put the proposition that it is in the high range. I would accept that it was approaching high range in the circumstances. I agree with the Crown’s observation that the charge 5 was above mid‑range.

485. For that offence I specify a sentence of 4 years and 9 months with a non-parole period of 3 years and taking into account the Form 1 offence [10] .

     10. The discount specified for this count can be found at para 257

486. Count 6 is in respect of JM, aged 23. He was made to stand naked at the window of the premises for ten minutes as described in the facts. There is a Form 1 offence of inciting aggravated indecency where he was made to stand at the window at the first occasion as described in the facts. I agree that this falls within the high range of objective gravity for this offence. It involved humiliation, which I accept. It was in the context of ten sessions of sexualised content masquerading as treatment, which I accept. A discount of 5% applies. The maximum penalty is three years. There is no standard non-parole period for this offence. I specify a term of 1 year, 10 months and 24 days.

487. Count 7 is in respect of NS, as are count 8 and count 9. In relation to NS the discount applicable is 10%.

488. Count 7 carries a Form 1. This was an offence of massaging the victim’s buttocks having directed him to be fully naked; he had him walk naked in public from a toilet block as described in the facts - that is the Form 1 offence to be taken into account. Maximum penalty for this offence is seven years with a non-parole period of five years.

489. I agree that this falls toward the high end of the range of seriousness. There was the humiliation and the victim’s vulnerability due to his fragile mental state. There were nine months of sexualised conduct masquerading as psychological treatment and he suffered significant emotional harm, which I accept.

490. For count 7, I specify a sentence of 3 years, 11 months and 21 days with a non-parole period of 2 years and 3 months.

491. For count 8, which is the offence of massaging his testicles, having directed the victim to become naked, I specify a head sentence of 3 years, 7 months and 6 days with a non-parole period of 2 years and 3 months.

492. For count 9, manipulating the victim’s penis having directed him to be fully naked, I specify a head sentence of 3 years, 7 months and 6 days with a non-parole period of 2 years and 3 months.

493. Count 10 is the child CA, aged 9, grooming him by showing him pornographic videos. The maximum penalty is imprisonment for 12 years with a standard non-parole period of five years. In the case of CA, the discount is 5%.

494. For the offence charged in count 10, noting he is a child of 9, significantly below the 14 year cut‑off for count 10, and he was a vulnerable child due to his fragile mental state, I specify a head sentence of 5 years, 5 months and 17 days, with a non‑parole period of 3 years and 5 months.

495. Count 11, the offender masturbated himself to ejaculation in the presence of the child. This was to be a matter that was the subject of a disputed facts hearing but that was abandoned in due course.

496. For this offence there is no standard non-parole period against the maximum penalty of seven years. I specify a sentence of 3 years, 6 months and 22 days [11] .

     11. The discount specified for this count can be found at para 257

497. For count 12, the victim was HK, aged 11. This was conduct where he massaged the boy, including his penis, over his clothing. There is to be taken into account an offence of indecent assault where he resumed the massage of the child over his clothing, on his genital area. 11 years of age, significantly younger than the 16 year old cut‑off point. His mother, as is reflected in the facts, was waiting in the adjoining room where this was occurring; this reflects a measure of brazenness.

498. For this offence I specify a head sentence of 3 years, 4 months and 15 days with a non-parole period of 2 years and 6 months.

499. Count 13 involving SU, a nine year old child. The offender using his finger, to adopt the description given in the statement of facts, “he took the boy’s finger and rubbed his - that is the offender’s encircled fingers - up and down the boy’s finger, suggestive of sexual intercourse”. That is the Form 1 offence to be taken into account.

500. The conduct upon which sentence is to be imposed, the grooming of the child, involved the offender opening a folder in his laptop, scrolling through numerous photos and showing the victim three photographs of a penis, opening a video file on the computer and showing him a video of a man wearing gloves touching another man’s penis and the offender asking “do you like that”. SU said that he did and asked “is that really what they do” to which the offender said “yes”. That was conduct intended to make it easier for him to have unlawful sexual activity with that child. For that offence and the proceeding offence in count 12, a discount of 10% has been applied.

501. For count 13, the head sentence is 3 years, 9 months and 26 days with a non-parole period of 2 years and 3 months.

502. I am intending on imposing an aggregate sentence with the finding of special circumstances that I have earlier announced.

503. To comply with s 44 Crimes (Sentencing Procedure) Act 1999 I announce a non-parole period of 12 years to date from 17 December 2017 and expire on 16 December 2029, with a further period during which he will be eligible for parole to expire on 16 December 2035.

504. The non-parole period is 12 years and the overall head sentence is one of 18 years.

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Endnotes

Amendments

19 October 2020 - Capitalise letters in two sub-headings

Decision last updated: 19 October 2020