R v Beullens

[2022] NSWDC 366

District Court

New South Wales

Medium Neutral Citation:

R v Beullens [2022] NSWDC 366

Hearing dates:

29 July 2022

Date of orders:

03 August 2022

Decision date:

03 August 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify an aggregate sentence of imprisonment of 13 years with a non-parole period of 8 years

Catchwords:

CRIME — Sexual offences — Act of indecency

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

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

SENTENCING — Sentencing procedure — Reasons for sentence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Cheung v R (2001) 209 CLR 1

Muldrock v R [2011] HCA 39

R v Isaacs (1997) 41 NSWLR 374

R v Millwood [2012] NSWCCA 2

R v Olbrich (1999) 199 CLR 162

Savvas v R (1995) 103 CLR 1

Tepania v R [2018] NSWCCA 247

Veen v R (No 2) (1987-1988) 164 CLR 465,[1988] HCA 14

Category:

Sentence

Parties:

Regina (Crown)
Christiaan John Beullens (Offender)

Representation:

Katharine Jeffreys (Crown Prosecutor)
Joanne Gallagher (Counsel for the Offender)

Director of Public Prosecutions (Crown)
Lyons Law Group (Offender)

File Number(s):

2018/00082550

Publication restriction:

Statutory non-publication order of the names of the complainants and of any information which may enable their identities to be ascertained

REVISED EX TEMPORE JUDGEMENT

INTRODUCTION

1. Christiaan John Beullens appears for sentence upon seven charges, after he was found guilty of those offences by a jury. He was committed for trial on 1 March 2019. The trial commenced upon an indictment alleging nine offences on 22 February 2022. A verdict of not guilty was directed for count 3 on 2 March 2022 and the jury returned a verdict of not guilty to count 4, but guilty of the remaining counts, on 16 March 2022. Counts 3 and 4 were in respect of the one complainant.

THE OFFENCES

2. The offences upon which sentence is to be imposed are;

3. Count 1

Between 3 August 1972 and 30 March 1973, at South Windsor in the State of New South Wales, did assault RP, a male person and commit an act of indecency on him.

The offence is contrary to s 81 Crimes Act 1900. The maximum penalty specified is imprisonment for five years.

4. Count 2

Between 15 March 1977 and 19 May 1978, at South Windsor in the State of New South Wales, did assault MB, a male person and commit an act of indecency on him.

This is contrary to the same provision, with the same maximum penalty.

5. Count 5

Between 23 August 1978 and 23 December 1978, at Walgett in the State of New South Wales, did commit an act of buggery with TR.

This is contrary to s 79 Crimes Act 1900. The maximum penalty for this offence is imprisonment for 14 years.

6. Count 6

Between 19 October 1978 and 22 May 1979, at South Windsor in the State of New South Wales, did assault DS, a male person and commit an act of indecency on him.

This is contrary to s 81 Crimes Act 1900, with a maximum penalty of imprisonment for five years.

7. The remaining offences, count 7, count 8 and count 9, were in respect of the same complainant, contrary to the same provision, with the same maximum penalty.

8. Count 7

Between 19 October 1978 and 22 May 1979, at South Windsor;

9. Count 8

Between 19 October 1978 and 22 May 1979, at South Windsor; and

10. Count 9

Between 19 October 1978 and 22 May 1979, at South Windsor.

PRE-SENTENCE CUSTODY

11. The offender was arrested on 17 April 2018 and released to bail. Upon the verdicts of guilty on 16 March 2022, he was taken into custody and has there remained. The aggregate sentence I shall impose in accordance with s 53A Crimes (Sentencing Procedure) Act 1999 shall commence on that day.

THE FACTS

12. It is my task to find facts upon which to determine sentence, consistent with the verdicts of the jury. I am to form my own view of the facts. Where there might be controversy, I am not bound to proceed upon facts that most favour the offender, but those which inform the objective seriousness of the offences must be proven to the standard beyond reasonable doubt and those which the offender would advance in mitigation will be accepted if proven upon the balance of probabilities. Authorities for these propositions are Cheung v R (2001) 209 CLR 1; R v Olbrich (1999) 199 CLR 162; Savvas v R (1995) 103 CLR 1; R v Isaacs (1997) 41 NSWLR 374.

13. The Crown has provided a summary of the facts available from the evidence. Counsel for the accused agrees that the summary provided by the Crown is available from the evidence adduced in the trial. I agree that they are facts that are established by the evidence in the trial and gratefully accept them as the facts and circumstances upon which to determine sentence. The facts are included in the Crown written submissions on sentence.

14. The offender was employed as an instructor or youth worker at Daruk Training School for Boys, located at South Windsor, between 28 December 1970, when he was 25 years of age, until at least 1981. During the periods when the victims were at Daruk, the offender was living on site in the bachelor’s quarters.

15. Daruk was an institution run with strict discipline in a military style. Youth workers were responsible for the direct supervision of inmates and had considerable power over them, including influence over their access to privileges and official punishments, such as isolated detention. Youth workers, including the offender, would also regularly strike inmates, though it was against the regulations to do so.

16. Included in the material produced in the Crown case were video recordings showing the boys who were held at that institution dressed in brown shirts and shorts, marching in formation as they were moved around the property.

17. In the course of my summing-up to the jury, I said that the jury were required to approach their task without sympathy or prejudice and to assess whether the Crown had discharged its burden of proof dispassionately and with objectivity. I noted that from what the court heard those not given the responsibility of deciding the questions in the trial could not be criticised for sympathy that might arise from what was presented. The children who were put into this establishment came from troubled backgrounds, through the system of criminal justice in operation at the time, because they had committed offences or were uncontrollable or neglected, according to the standards that applied.

18. According to the system in place they were put into the institution where one might view their treatment, as presented, to have been inappropriate and certainly against standards which apply today reflecting a far more enlightened approach to guidance required by troubled children. I commented that to see them marched around in this place, akin to a type of military establishment and amongst other humiliations, made to wait by the bed after stamping their foot until an officer would allow permission for them to go to the toilet, being lined up against the wall and struck on the back of the head with a leather bound book, and placed in segregation for extended periods with water put about so they could be occupied with rags, mopping up the floor, to give them something to do, could easily excite sympathy, regardless of what was their misconduct or the reason for the decision by those in authority that caused their incarceration in such an environment.

19. I noted for the jury that the accused was not charged in respect of any general mistreatment of the complainants or other children within this establishment, but with specific allegations of sexual assault upon which the jury should focus.

20. The environment, though, is a matter to be not overlooked when assessing sentence in this case, where there were boys in circumstances where they were under the control and supervision by men, including the offender, who has been found to have embarked upon egregious behaviour, as I am about to describe.

Count 1

21. The allegation of indecent assault upon RP, occurred between 3 August 1972 and 20 March 1973, when RP was an inmate at Daruk. It occurred in his first two weeks in the institution before his sister’s wedding; that occurred on 19 August 1972. The offender at this time was aged 27; RP was aged 14.

22. RP was sent to the isolation cells for 24 hours by the then superintendent, a person of the name Maher, for irreverence during a Sunday service. RP was scared and cried to be let out of the cell. After RP had been in the isolation cell for a number of hours, the offender entered the cell. Attending to inmates in the isolation cells did not form part of the offender’s regular duties and RP was not, at that stage, allocated to Kuma House, where the offender usually worked. RP did not know the offender at the time, though he later came to know his name while he was still at Daruk.

23. RP pleaded with the offender to be let out. The offender said, “I should be able to help you” and told RP, “You help me out and I’ll help you out.” The offender took his penis from his pants and said, “Pull my dick and I’ll help you.” RP complied by masturbating the offender’s penis. He did not know whether the offender ejaculated. Afterward, the offender left RP in the cell where he continued to cry and call out for help. He was not let out until the next day.

24. The offender would ask inmates, including RP, to wash his car, a unique vehicle, an orange coloured two door Monaro with white upholstery. After RP was discharged from Daruk, the offender visited RP’s mother in her house at Colyton several times and, on one occasion, invited RP to go with him on a trip to Alice Springs. Whenever RP saw the offender’s car outside his mother’s house, he would avoid going home.

Count 2 - Indecent Assault of MB

25. MB was an inmate at Daruk for periods between 15 March 1977 and 19 May 1978. The offence occurred during his first period of incarceration at Daruk, which ended on 30 July 1977. The offender was at this time aged 32; MB was aged 14.

26. At night, one youth worker would be on duty from 10pm to 6am in each of the four houses at Daruk, stationed in a small, raised glass enclosure known as “the dog box” that looked over the dormitory area. The officer was not supposed to leave the dog box, except in cases of emergency. Another officer, a senior youth worker or youth worker on duty on the administration deck, would patrol through the houses approximately every 30 minutes to check that all was in order.

27. One night, when the offender was on duty at Kuma House, he left the dog box and went to the bed where MB was sleeping. The dormitory was physically divided into six sections of 10 beds each; MB was in 4 section. The offender took MB by the shoulder and told him, “Get up out of bed and come with me.” The offender had MB by the shoulder and walked him to the ablutions area inside Kuma House.

28. The offender sat with MB down on a freestanding bench in the centre of the ablutions area, where boys would hang their towels while showering, and walked over to the trough in the corner. The offender returned to MB with his penis out of his pants and said, “Suck my dick.” MB felt frightened and complied. The offender forced his penis in and out of MB’s mouth until he ejaculated into MB’s mouth. MB was crying and gagging while this occurred and vomited into a toilet afterwards. Before they left the ablutions area, the offender said, “Don’t tell anyone what happened.” Afterwards, MB returned to bed and the offender returned to the dog box.

Count 5 – Buggery of TR

29. TR was an inmate at Daruk between 23 August 1978 and 23 December 1978. The offence occurred about a month before TR was discharged from Daruk when the offender was aged 33 and TR was 14.

30. TR behaved well at Daruk and moved up quickly into one section where he enjoyed some privileges; TR and the offender got on quite well at first. TR was one of the four boys selected to go on a camping trip to Lightning Ridge. The offender took the boys in his own white Holden station wagon. While camping, the boys shared two-man tents while the offender had a separate tent.

31. On the first night, the offender took the boys to the Walgett Motel, which his parents had recently purchased and were operating. He introduced the boys to his parents. The four boys shared a room and the offender had a separate room with an adjoining door. After the boys had watched television and gone to bed, the offender opened the adjoining door, which was ajar, and invited TR to have a bit of supper with him. TR went into the offender’s room and the offender closed the adjoining door.

32. The offender gave TR a can of beer to drink and then a second can. TR had not consumed alcohol before and felt intoxicated. They had a general discussion, including about Daruk and how TR’s time there had been easy. The offender told TR that he had “a fair bit of pull” with respect to the length of TR’s committal and said he could keep making TR’s time easy, if he played the game, saying that he could help TR if TR helped him.

33. The offender turned TR around and placed him face down on the bed, so that TR’s legs were hanging over the edge. The offender pulled down TR’s shorts and underpants so that one leg was removed. He put some cream on TR’s bottom; TR began to struggle. The offender told him it would be easier if he relaxed. The offender then inserted his penis into TR’s anus and had sexual intercourse with him. TR described this as painful and scary and surreal. TR did not know whether the offender ejaculated.

34. Afterwards, the offender wiped himself and TR’s bottom. He told TR he did not mean to hurt him and said it would be useless if he told anybody because he would not be believed and he would be the one punished.

35. TR returned to the boys’ room and went to the bathroom. He found he was bleeding a bit. He then went to bed.

36. The next morning he felt pain and did not go to the toilet for a few days afterwards as he was scared about reopening any wounds. The offender behaved as if nothing had happened.

37. One night, while the group was camping, the offender unzipped a tent in which TR and another boy were sleeping, crawled into the tent, and started unzipping TR’s sleeping bag. TR began to make a commotion and the other boy began to stir, sat up and asked what was going on. The offender said, “Don’t worry about it, I was only mucking around” and left the tent.

38. On another occasion, after the group had returned to Daruk, the offender went with TR to the matron’s room and told him to get a fresh towel. The offender grabbed TR around the waist and TR responded by struggling and pushing the offender away. The offender laughed this off.

39. At some point after the camping trip, TR began to tell Ms Hayes, the Kuma House matron, what had happened with the offender. However, Ms Hayes told TR, “You can’t go saying things like that, you’ll be the one punished for it. Other boys have said stuff like that and they’ve been punished, so don’t be stupid. Don’t tell lies.”

Counts 6 to 9

40. These are offences of indecent assault upon DS. There are four of them. DS was an inmate at Daruk between 19 October 1978 and 22 May 1979. The offences took place about a week before DS escaped from Daruk, which occurred on 12 February 1979. At that time the offender was aged 33 and DS was 15.

41. One night, when the offender was on duty in Kuma House, DS stood beside his bed to indicate that he was seeking permission to go to the toilet. On this occasion, the offender left the dog box and stood at the entrance to the corridor leading to the ablutions area while DS walked into the ablutions area and used the urinal.

42. The offender approached DS from behind and put his hands on his shoulders. The offender’s hands moved down DS’s sides to his pants and the offender massaged DS’s penis until it became erect. That is the conduct upon which Count 6 is brought.

43. DS had not had sexual experience before. The offender told DS that if he said anything about this he would be sent to the “boob” for lying about a house master.

44. The offender turned DS around and got on his knees and sucked DS’s penis. He then pushed DS onto his knees and stood up, for DS to suck his penis; DS tried to mimic what the offender had done. That is the conduct upon which Count 8 rests.

45. The offender stood up and continued to suck DS’s penis until DS ejaculated. That is the conduct upon which Count 9 is brought.

46. The offender then turned DS around and bent him forwards and kissed and sucked DS’s buttocks and anus. That is the conduct for Count 7.

47. When the offender had finished, he told DS to go back to bed. DS returned to bed and the offender returned to the dog box. The following day DS told the superintendent, a man named Webster, that “Beullens touched me up” and DS was thereupon sentenced to 24 hours in the isolation cells for lying. About a week after the offence, DS escaped from Daruk with an Aboriginal boy but was recaptured and sent to the isolation cells again.

THE ASSESSMENT OF THE GRAVITY OF THE OFFENDING

48. In Tepania v R [2018] NSWCCA 247, Johnson J provided guidance upon the assessment of objective gravity and the significance of moral culpability in the process of determining sentences. After dealing with the provisions of producing standard non-parole periods, his Honour wrote of the importance of a court sentencing for an offence, regardless of whether a standard non-parole period offence, assessing the objective gravity of the offence applying general law principles, considering all factors which bear upon the seriousness of the offence unless excluded by statute.

49. In this case, there are no factors to explain why the offender behaved as he did, leaving the court to proceed upon a finding that he was motivated by his sexual desires at the expense of these young victims. There are identified no factors that otherwise might be shown to be causally connected with or materially contributed to the commission of the offences, including a mental disorder or mental impairment.

50. His Honour discussed the concept of moral culpability found in several decisions of the High Court. In Veen v R (No 2) (1987-1988) 164 CLR 465,[1988] HCA 14, it was observed at 476-477 that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability. His Honour referred to Muldrock v R [2011] HCA 39 at para [58], for the proposition that an offender’s limited moral culpability through deprivation may mean that retribution and denunciation did not require significant emphasis.

51. There was no material before me that would assist the offender in this regard. There is nothing in the material before me that might support a finding that the offender suffered disadvantage in his life, such that he was left with emotional resources insufficient for him to guide his behavioural decisions: R v Millwood [2012] NSWCCA 2, per Simpson J at para [69].

52. Upon my analysis of the factors relevant to the assessment of objective seriousness of the offending, I agree with the assessment made by the Crown for each of the offences, for the reasons the Crown has articulated.

53. Count 1, involving skin to skin contact between the offender’s penis and RP’s hand, was assessed upon that description alone as not in the upper range of seriousness, bearing in mind the wide range of conduct encompassed by the provision under which the charge was brought. There is an increase in its gravity, however, by the factors that are implicit in the circumstances of all these young boys. These include that an offence under s 79 or s 81 can be committed with a person of any age, with or without their consent. The objective seriousness is significantly increased by the fact that the victim was a child and, therefore, in the absence of consent. DS’s physiological response to the offender’s acts becoming erect and ejaculating did not reflect consent and was a source of confusion to him. The objective seriousness of each offence is also increased by the fact that the victim was, to the offender’s knowledge, a vulnerable child who lacked family support. DS was a ward of the State. TR had been handed over to authorities by his father. RP and MB were from homes where domestic violence occurred. The offender had warned MB, TR, and DS not to tell anyone of what had occurred.

48. Thus, bringing those matters to bear, I agree that;

49. Count 1 perhaps should be placed at or slightly below middle range of objective seriousness.

50. Count 2, an act of forced fellatio, culminating in the offender ejaculating into MB’s mouth, I agree is at the upper end of the range of seriousness.

51. Count 5, the offence of buggery, was preceded by the offender supplying TR with alcohol so that he became intoxicated. The offence caused TR pain. He acknowledged the offender’s instruction that it would be easier if he relaxed and the statement afterwards that he, the offender, did not intend to hurt TR. I agree that this offence was above mid-range. I agree that age and lack of consent is relevant to this offence.

52. Count 6 involved skin to skin contact between the offender’s hand and DS’s penis. This is comparable in objective seriousness to Count 1, at or slightly below mid-range. It is a matter which has increased seriousness because this was DS’s first sexual experience.

53. Count 7 involved the offender kissing and sucking DS’s buttocks and anus with his tongue, mouth, nose, and hands touching DS’s buttocks. This involved, obviously, a considerable degree of intimate physical contact. The Crown concedes this as mid-range or slightly below.

54. Count 8, an act of forced fellatio, is similar in objective seriousness to Count 2 but somewhat less serious because the offender did not ejaculate into DS’s mouth.

55. Count 9 involved the offender performing oral sex on DS until DS ejaculated. The objective seriousness is similar to Count 2, noting also that the victim’s ejaculation in this context formed a part of his first sexual experience.

56. The Crown noted that there was abuse of the position of authority held by the offender throughout this period. S 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 is noted. The offences were committed against MB, TR, and DS in the course of his employment as a youth worker, trusted to take care of them, and he had access to RP because of his employment.

57. The evidence included that the offender made explicit reference to his authority over RP, TR, and DS at the time of the offences, offering to give RP and TR favourable treatment if they complied and warning TR and DS that if they complained they would be disbelieved and punished.

MB’s VICTIM IMPACT STATEMENT

64. The court has been provided with one victim impact statement. This was provided by the complainant MB, who is the subject of the offence charged in Count 2. This was not read by the victim but was tendered in the Crown material and I have, therefore, read the document, which is replete with expressions of distress that MB asserts has afflicted him throughout the 46 years since these events occurred.

65. He continues to suffer bad nightmares, headaches and has suffered the breakup of marriages and relationships due to what he experienced, he says. He writes, amongst other things,

“You looked after many children and I feel sorry if there (sic) were more victims than just me because it’s not what I got sent to Daruk Boys’ Home to, you had the power and control over me and many other children.”

66. He expresses his view about the offender, which I need not repeat at this point. He speaks of the 46 years he has been waiting for justice to be delivered. He speaks of the recurrent memory whenever he hears news or reads a report of similar behaviour, each such occasion taking him back to his childhood. He refers to the offender having had his freedom and his life, said to be one of luxury, while the victim continued to suffer through the same period. He is approaching 60 years of age and was 14 at the time he suffered this offence.

67. He continues to suffer psychological and mental and emotional difficulties. He has been on a disability pension since 1999, suffering a mental breakdown, as he describes it, said to be due to what happened to him. He has been unable to continue in the same job for any significant length of time. He had a broken relationship with his children’s mother finally resolved when she was made aware of what he had experienced. She died seven years ago.

68. The court has, thus, in that document, been given some insight into the magnitude of the impact of the offence upon MB, who provided the victim impact statement. I have taken it into account in respect of the offence against him but I make clear that I have done so not to aggravate the offender’s culpability or the sentence to which he is exposed, but as is appropriate, in my view, to mark the impact of this appalling behaviour upon him.

69. The court views the presentation of the statement as a compelling reminder of what follows for the victims after such degrading misconduct.

70. Relevant to each of the complainants, the Crown has reminded me of s 25AA(3) Crimes (Sentencing Procedure) Act 1999 which provides that, when sentencing an offender for a child sexual offence, the court must have regard to the trauma of sexual abuse on children, as understood at the time of sentencing, which may include recent psychological research or the common experience of courts. For this purpose, I draw upon what has become the all-too-common experience of the courts called upon to deal with offending of this type. It is also to be noted that s 25AA(1) of the Act requires the court to sentence an offender for child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing and not at the time of the offence. This provision was introduced because in years past, as is evident upon the research of cases determined by the courts historically, the sentences imposed and the approach taken did not reflect the seriousness of the misconduct and the harm that was caused in behaviour such as this.

71. I note there is no medical evidence against which to assess the subjective material from the victim who provided the victim impact statement but the outcome he described he says one might expect. Although clearly significant to him, what he has written does not, upon the material before me, allow a finding that his experiences because of this misconduct extends to what might be found to be substantial psychological harm. However, I am entitled to consider what he has written in the assessment of the offence upon which sentence is to be imposed and I bring to bear what has become, through the experience of the court, the trauma of sexual abuse upon children.

THE OFFENDER

72. The offender was born in 1945. He is now 77 years of age and is in poor health. He has no antecedent offences. He gave evidence in the trial, denying the offences, which was clearly not accepted by the jury, at least in respect of these counts, although there were questions that impacted upon the assessment of guilt in respect of Counts 3 and 4. Indeed, Count 3 did not have any evidence to support it and Count 4, brought in respect of the same complainant, was not established to the satisfaction of the jury, a conclusion with which I agree.

73. There is a sentence assessment report prepared on 21 April 2022. He is noted to have been living in Queensland, where he and his friend resided in stable circumstances. From another source, his friend, as I understand it, has a terminal illness and the offender was his carer. He was living temporarily on the Central Coast in New South Wales during the trial and until he was taken into custody.

74. He is single with no dependants. He has a daughter from whom he is estranged due to what he claimed to be her opinion of his current offences. He retired at the age of 65 and has been on a pension since then.

75. He denied the offences to the author of this report. He accused the victims of having fabricated the information for monetary reward or, alternatively, that he was mistakenly identified as the perpetrator.

76. He reported depression and anxiety since the passing of his mother and fiancée some 18 years ago, for which he claimed to receive treatment by way of medication and counselling. Since entering custody, he appears to have suffered further deterioration in his mental health. He is attributed with expressions of suicidal ideation which had him placed under a risk intervention team on 8 April 2022.

77. He is not attributed with any insight into the offending because he claims the victims lied. He denies the offences. He agrees that he would benefit from mental health intervention. He is assessed as a medium to low risk of re-offending.

78. There is also a case note report accompanying the sentencing assessment report. This was not prepared with the benefit of interaction with the offender but it was constructed upon material provided to the author. This includes a history of a long-term relationship of about eight years, which resulted in a marriage for only six months before the relationship broke down. There was a further two-year relationship which ended when his partner died from an illness about 18 years ago. He denies sexual attraction to males. He has little family support. His parents and sister died some time ago and his only child, his daughter, having rejected him, he has but one niece who remains supportive.

79. There is no history of drug or alcohol abuse. He suffered a deterioration in his mental health when his partner died around the same time as his mother and he currently receives medication for his depression and anxiety. There is also reference to his physical health with which I shall deal.

80. The special management area placement material is before me. He made an application for assistance in this context. He was attributed with fear. Counsel addressed me upon this point and noted that, at the present time, he is not in any difficulty in this regard but feels vulnerable because of his age, his ill health, and the nature of the offences of which he has been found guilty. He is not in protective custody and does not feel unsafe.

81. The matters noted for the SMAP assessment include the nature of the offences, first time in custody, his age, his diminutive size, the high probability of a general threat of violence without any overt intention expressed to him to carry out a threat.

82. It is noted that the SMAP is supported because he is a fearful and vulnerable inmate. The documents include his written request in the following terms, “I, Christiaan Beullens, request protection because of my charges.”

83. Counsel for the offender fairly summarised the position as I quoted a moment ago and indicated that I need not have spent time proceeding through the SMAP documents, but I have chosen to do so in the circumstances. They are consistent with what his counsel said to me.

84. I am provided with the periods of lockdown that he has experienced since going into custody. There is a chronology provided upon material received from Corrective Services. In May of this year, there was lockdown for the full day on 6th, 7th, 13th, 15th, 16th, 18th, 20th, 26th, 30th and 31st and then for half a day on 8th, 11th, 17th and 28th. In June, there was a lockdown on 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 11th, 13th, 14th, 17th, 18th, 19th, 20th, 22nd and 24th and half a day on 28th.

85. This crystallises what the court has come to understand of the limitations for those in custody by reason of the COVID-19 pandemic; it is a matter I bring to account as part of the punishment that he suffers whilst in custody.

86. The material provided on his behalf includes the reference from his niece, who is now 56 years of age. She speaks of him in the most glowing terms. The charges came to her as a complete shock. She would not believe, she said, that he would be involved in the crimes of which he has been accused. She speaks of his caring, compassionate nature and the assistance he gave to her mother as she was passing away and to the author and her siblings and she speaks also of the care provided to his own parents as they aged and needed care.

87. There is a document from Paradise Point Family Medical Centre reporting that the offender suffers from chronic obstructive pulmonary disease, osteoporosis, an enlarged prostate, hypertension, chronic spinal pain due to previous fracture, depression and anxiety and he takes multiple medications.

88. Dr Richard Furst, psychiatrist, provided a report written on 20 July 2022. There was objection to part of the report where Dr Furst offered the opinion of his life expectancy. This appears at para 6, in response to question 6, put to the psychiatrist for his comment. He noted the age, life expectancy and the impact of the conditions he suffers upon those actuarial factors. The Crown correctly observes that although Dr Furst might have degrees in medicine and surgery, his area of speciality is psychiatry and there are questions over whether he has the necessary expertise to offer the opinion that he has.

89. That said, it would beggar belief not to accept that the conditions with which the offender has been diagnosed will impact upon his quality of life and perhaps the length of the life he has remaining. The Crown’s objection ultimately is not as to the diagnosis to which Dr Furst referred but the quantification of the adversity that will arise because of it.

90. Dr Furst referred to his demographic details. He was six years of age in 1951, when he and his parents came to Australia from Holland. His daughter is now in her late forties, his parents are deceased. He has an older sister who died in her thirties from cancer.

91. He was conscripted into military service during the Vietnam War in the late 1960’s, where he served in the medical corps. There is no indication of any post-traumatic stress disorder or other mental disorder arising from his medical service.

92. His work history is discussed, including the employment at Daruk over about 10 years.

93. He struggled to cope with the passing of his sister in 1930. His parents died one year apart when the offender was in his mid-60’s and he has had difficulty coping with his mother’s passing. He remained in a low mood at the time and it appears that coincided with a depressive illness that he has been suffering for the past 12 years or so. He was prescribed Prozac by his GP on the Gold Coast.

94. He was engaged to be married in his 60’s. That lady died about 12 months after his mother passed away and that was a source of additional grief.

95. The medical history is discussed, as I have outlined it from the other document to which I referred, the history of medication is noted. It is medication that was necessary and is necessary for each of these conditions that afflict him.

96. He suffered high levels of stress in relation to the offending before the court. He continues to deny committing the offences. He complained of the four years it has taken for the legal process to conclude.

97. Upon the Beck Depression Inventory, he endorsed a number of ongoing depressive symptoms. Upon the results of that test, he was assessed in the moderate to severe range in relation to current depressive symptoms.

98. There are difficulties, apparently, in custody, where he has had to make repeated requests for provision of his inhaler and puffer medications for his chronic obstructive pulmonary disease and he has had to make repeated requests for batteries for his hearing aids, being hearing impaired.

99. There is reference to his status as the registered carer for his housemate with whom he was living on the Gold Coast.

100. There is reference on p 5 to the offender having recently, in March 2022, disclosed that he was a victim of a previously undisclosed sexual assault when he was 13 years of age. I have no further material regarding that or any information that would enable the court to assess its significance in the context of the assessment of these sentences.

101. In response to questions posed to the psychiatrist, he noted there were no additional issues, no apparent personality disorder or other major psychopathology. He appeared to be of approximately average intelligence. His clinical problems are mainly in relation to poor physical health, as I have discussed and the depressive disorder that was determined.

102. The depressive disorder is characterised by low mood, negative thoughts about himself and his life generally, irritability, loss of interest in things, suicidal thoughts, loss of appetite and insomnia. This appears to have started in his mid-60’s, coinciding with the death of his parents, exacerbated by the legal proceedings and media exposure because of this prosecution.

103. It is the fact that there was a great deal of media exposure in this case when a television program broadcast facts and circumstances arising from misconduct of this type at the Daruk Centre. During that, his identity was exposed.

104. There is no indication, according to Dr Furst, that he was depressed or otherwise suffering from a diagnosable mental disorder in the 1970’s, meaning that his depressive disorder has no relevance in relation to the offences before the court.

SUBMISSIONS

105. The submissions made on behalf of the offender largely acknowledged the submissions made on behalf of the Crown. It is noted in written submissions on behalf of the offender that the Crown summarised appropriate non-contested factual findings in relation to each offence. The Crown urged factual findings on the objective seriousness of the offending and they are not contested.

106. The submissions remind me that the likelihood of his re-offending is low and this is consistent with substantial rehabilitation. It is not really a matter of rehabilitation, as in the sense that the offender is aware of the nature of the wrong doing and what caused it, revealing insight. It is simply the fact that at his advanced age and in his present circumstances it is highly improbable that he will engage upon misconduct of this type against children in the future.

107. I accept that his advanced age and health concerns are likely to make his time in custody more onerous than if he did not have them. The submissions made on behalf of the offender note s 25AA Crimes (Sentencing Procedure) Act 1999, requiring the court to deal with the matter upon the basis of sentencing patterns at the time of the sentence, determining the facts available to the court having regard to the maximum penalty and the standard non-parole period, if any. There is no standard non-parole period attaching to any of these offences, when assessing the objective gravity, considering relevant aggravating, and mitigating factors, setting a non-parole period in accordance with s 44 and fixing the balance of term.

108. The submissions note that the Crown submissions as to abuse of position of authority are not contested or challenged and it is conceded that no other sentence other than fulltime imprisonment is appropriate in the case.

109. The Crown submissions regarding totality are not contested and not challenged. I am urged to find special circumstances, bearing in mind his age, that it is the first time in custody and the accumulation of individual sentences which will be required to reach the aggregate sentence that will be imposed. I agree that there should be a finding of special circumstances in this case for those reasons.

110. The Crown submissions include reference to the abuse of position of authority, of which there is ample evidence in this case. It is noted that he has no prior convictions but the weight to be attributed to the significance of that or to that as a significant consideration is informed by the extent of this offending, over several years, against four victims. The offences were on separate occasions, over six to seven years.

111. The Crown submits that the ill health of the offender is relevant only to whether the custody will be more onerous for him than for other prisoners; I agree with that. The Crown concedes that there is no likelihood of reoffending, considering the circumstances and age of the offender.

112. There is no evidence of remorse given at all in these proceedings, which is clear.

113. The Crown submits that the offences charged in Counts 6, 7, 8 and 9 all took place as part of one incident and there would be significant concurrence; indeed the word used was “substantial” concurrence, but not total concurrence, and that the remaining offences should all be partly accumulated to reflect that they were against separate victims.

105. The Crown does not accept that special circumstances have been established to vary the statutory ratio between the non-parole period and the time spent on parole, but I differ with the Crown upon that point, as I have already indicated.

106. I have dealt with the assessment of objective gravity. I find that the offender’s moral culpability and his misconduct should be assessed as significant, if not substantial.

107. I have brought to account his advanced years and his ill health, which will bear heavily, I expect, upon him in custody. I have brought to account his history of depression, discussed by Dr Furst. I have not overlooked that the custodial component of the sentence will likely consume the balance of his life. There is a contrast here between the offender and his victims, who have borne the impact of the crimes against them from young ages, as the offender continued with life until called to account upon the disclosure of these crimes.

THE SENTENCE

117. The purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999 require comment. General deterrence must attract significant weight. Personal deterrence is of lesser moment, considering the offender’s age and health issues disclosed. There must be accountability for what he has done, which must be denounced, and there must be recognition of the harm done to the victims and to the community, who trusted the offender in the role he performed to provide care and supervision for unfortunate young people who were taken into custody at Daruk.

118. I am satisfied that no penalty other than imprisonment is appropriate and that it should be served in custody.

119. The offender is convicted of each of the offences. I have decided to impose an aggregate sentence of imprisonment. The aggregate sentence I propose consists of a non-parole period of 8 years, commencing from 16 March 2022 and a head sentence of 13 years. The offender will become eligible to be released on parole on 15 March 2030.

120. The sentence that would have been imposed for each offence, if separate sentences had been imposed instead of an aggregate sentence, are:

1. For the offence charged in Count 1, indecent assault on RP, a sentence of 2 years.

2. For the offence in Count 2, indecent assault on MB, a sentence of 3 years and 9 months.

3. For the offence in Count 5, buggery upon TR, a sentence of 7 years.

4. For the offence in Count 6, indecent assault on DS, a sentence of 2 years, 3 months.

5. For the offence in Count 7 of indecent assault upon DS, a sentence of 2 years and 9 months.

6. For the offence in Count 8, indecent assault upon DS, a sentence of 3 years, 3 months.

7. For the offence in Count 9, indecent assault upon DS, a sentence of 3 years and 3 months.

121. I will have my associate hand down a copy of the orders, including those sentences.

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Decision last updated: 24 August 2022