R v CA

[2021] NSWDC 407

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v CA [2021] NSWDC 407

Hearing dates:

2 July 2021

Decision date:

09 July 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentenced to an aggregate term of 5 years with a non-parole period of 2 years and 6 months

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child < 16

CRIME — Child sex offences — Sexual intercourse with child <10

CRIME — Sexual offences — Indecent assault – Child <16

CRIME — Appeals — Appeal against sentence — Re-sentence

SENTENCING — Juvenile offenders — Sentence of imprisonment

Legislation Cited:

Crimes Act 1900 (NSW) ss 61D, 61E

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 25AA, 3A

Children (Criminal Proceedings) Act 1987 (NSW) s 15A

Cases Cited:

R v MJR [2002] NSWCCA 129

Pearce [1998] HCA 57

Corliss v R [2020] NSWCA 65

R v Cattell [2019]NSWCCA 297

R v Gilmore (1979)1 A Crim R 416

R v Bedford (1985) 5 NSWLR 711

R H McL v The Queen [2000] HCA 46

Tarrant v R [2007] NSWCCA 124

R v MM [2002] NSWCCA 431

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
CA (Offender)

Representation:

Counsel:
Mr Cooley (Crown)
Mr Khan (Offender)

Solicitors:
Ms Calderbank and Mr Gilson (Crown)

Ms Boehm (Offender)

File Number(s):

2015/103839

Publication restriction:

Offender and victims’ names subject to non-publication order

SENTENCE

Introduction

1. The offender stands to be sentenced after having been found guilty after trial by jury of seven sexual offences against three young boys, all of which occurred in the early to mid 1980s. The jury found the offender not guilty of another four charges relating to two of those three victims.

2. The trial was a re-trial, the offender having been successful in an appeal to the Court of Criminal Appeal in relation to an earlier trial that had involved more complainants. In relation to those other complainants the offender stood a separate re-trial before another jury and myself earlier this year and was acquitted on all counts.

3. The particulars of the offences for which the offender stands to be sentenced are as follows.

4. In relation the victim DB, three offences that occurred between 14 December 1982 and 14 December 1986 at Bronte, being offences that the offender had sexual intercourse with DB without his consent, knowing that he was not consenting, DB being under the age of 16 years. Those offences were offences under the then s 61D(1) of the Crimes Act and have a maximum penalty of 10 years imprisonment and there is no applicable standard non-parole period. Those offences were contained in counts 4, 5 and 6 on the indictment.

5. There is also an offence that between the same dates and also at Bronte the offender committed an act of indecency towards DB, a person then under the age of 16 years. That was at the relevant time an offence under s 61E(2) of the Crimes Act and had a maximum penalty of two years imprisonment and there is no applicable standard non-parole period. That offence was contained in count 7 on the indictment.

6. In relation to the victim RC, there is an offence that between 1 November 1985 and 1 March 1986 at Bronte the offender committed an indecent assault on RC who was a person then under the age of 16 years, namely nine years. That was an offence under s 61E(1) of the Crimes Act and at that time had a maximum penalty of six years imprisonment and there is no applicable standard non-parole period.

7. There is a further offence concerning the victim RC being an offence that during the same period of time and also at Bronte the offender had sexual intercourse with RC without his consent, knowing that he was not consenting, RC then being under the age of 16 years, namely nine years. That was an offence under s 61D(1) of the Crimes Act and as I indicated earlier, at the relevant time it had a maximum penalty of 10 years imprisonment.

8. In relation to the victim MW the offender is to be sentenced in relation to an offence that between 31 December 1983 and 1 April 1984 at Bronte the offender committed an indecent assault upon him, MW at the time being a person under the age of 16 years, namely 11 years. At the time that offence was an offence under s 61E(1) of the Crimes Act and had a maximum penalty of six years imprisonment and there was no applicable standard non-parole period.

9. The jury returned not guilty verdicts in relation to counts 1, 2, 3 and 10 on the indictment.

The Facts

10. Turning then to the facts. These are sentence proceedings after trial and I am required to find the facts consistent with the jury’s verdicts. To the extent that I find a fact adverse to the offender then I must be satisfied of that fact beyond reasonable doubt. In general terms the jury’s guilty verdicts reflect an acceptance of the evidence of each of the victims in relation to the count to which the verdict related. The offender did not engage in a record of interview with the police or give evidence at trial.

11. It was an agreed fact in the trial that the offender had been an active junior member of the Bronte Surf Lifesaving Club in the 1984/85 season and was involved with the IRB, being the inflatable rubber boat, more colloquially known as a rubber ducky. It was also an agreed fact in the trial that the offender was an active senior member of the Surf Lifesaving Club in the 1985/86 season and a patrol captain in the same season. I note that the offender’s date of birth is 7 August 1967, so he turned 18 on 7 August 1985.

12. It was also an agreed fact at the trial that the 1982/83 Nippers Annual Report for the Surf Lifesaving Club listed DB and MW as “nippers”, being young trainee lifesavers. It was also an agreed fact at the trial that the 1985/86 Nippers Annual Report for the Surf Lifesaving Club listed RC and DB as nippers in the club. It was also an agreed fact that the offender was not involved in any official capacity with the nippers of the Surf Lifesaving Club.

13. The evidence in the trial by way of birth certificates that were exhibits was that DB was born on 14 December 1976, RC was born on 3 June 1976 and MW was born on 11 October 1972.

14. I will firstly deal with the facts concerning the offences against DB. DB had been member of the Bronte Nippers when a young boy and knew the offender as the then captain of the IRB, the inflatable boat. In relation to the conduct relied upon for count 4 on the indictment, DB gave evidence that there was an occasion when he was in an alley way at the Bronte Surf Club and the offender performed fellatio upon him.

15. DB gave evidence that RC was also present on this occasion and that the offender performed fellatio upon RC as well. RC did not give evidence of being present on that occasion and there was no count on the indictment that concerned him and this particular occasion. In those circumstances, I cannot be satisfied beyond reasonable doubt that the offence took place in the presence of another young boy.

16. DB said he thought the conduct went for about 10 minutes. His description of the incident was very brief. I cannot in these circumstances be satisfied beyond reasonable doubt that the offender ejaculated or what level of force he used to have the boy engage in the conduct.

17. The offences in counts 5, 6 and 7 which concerned DB all occurred during the one incident. The incident occurred in the upstairs area of the surf club away from the main area. The offender entered that room with DB and closed the door. The offender removed DB’s pants or swimming costumes and put his hands behind the victim’s bottom. During this incident the offender fellated the victim which is what forms the basis of count 5. The offender also at one point had DB fellate himself while lying on the ground which is the conduct which supports count 6. The offender withdrew his penis from the victim’s mouth at some point and masturbated in the victim’s presence to the point of ejaculation onto a wall. That conduct is what constitutes the offence in count 7.

18. DB said that the offences were committed against him by the offender when DB was 8, 9 or 10 years of age and could not be any more precise than that. In saying that I am in no way being critical of DB, who clearly found it very difficult to give evidence of the events the subject to the trial. The evidence suggests that DB first disclosed the offending to either his mother or sister. His sister thought that DB had disclosed to her in 1986 or 1987 that the offender engaged in oral intercourse with him. The sister said she then told her parents but the evidence does not reveal what then occurred.

19. Given DB’s date of birth, the offences occurred in either 1983, 1984 or 1985/1986. Only if I can be satisfied that the conduct occurred on or after 7 August 1985 can I find the offender was an adult at the time of the offences. There was nothing in the evidence that supports a finding beyond reasonable doubt that the offender was 18 years of age when he committed the offences upon DB.

20. Whilst the sister said she thought DB had made disclosures to her in “about 1986 or 1987” she was far from definitive as to when it was and DB did not say how soon after the offending occurred he made a disclosure to his mother or sister. The sister’s evidence in cross-examination was that DB did not tell her when the offences occurred. I find the offender was 16 or 17 years of age at the time of the offending against DB.

21. I will now deal with the facts concerning the offences committed upon RC. RC joined the Bronte Nippers when he was 6 years of age and left when he was 13. He had on occasion been on the IRB, the inflatable boat, when a Nipper and understood the offender to be in charge of that boat and that he would patrol the beach. He also would see the offender at the beach from time to time.

22. RC on an occasion which he believed was in the summer of 1985 or 1986, was in a corridor at the surf club with the offender. At some point RC was naked and on the shoulders of the offender. The offender proceeded to massage RC’s genitals, being his testes, with his hands. That conduct is what supports count 8 on the indictment. This went on for a short period of time. After the offender had massaged RC’s genitals he digitally penetrated RC’s anus with a finger. RC when he gave evidence had no further recollection of the incident. That is the conduct relied upon for the offence contained in count 9 on the indictment.

23. While in cross-examination RC conceded he had originally thought that the offences occurred in 1984/85 when he made his police statement. He was by the end of his evidence certain that the offences occurred in the summer of 1985/86. In these circumstances I accept that is when the offences occurred and that the offender had recently obtained his majority. RC first disclosed the offending to his father in 1986. The evidence appears to be silent as to what then occurred as a consequence of that disclosure. Many years later RC disclosed the offending to a friend.

24. I turn then to the facts concerning the offence which involved the victim MW. MW joined the Bronte Nippers when he was 4 or 5 years of age in 1976 or 1977. He left the Nippers when he was about 13 years of age. He had gone out in the IRB, the inflatable boat, in the summers during 1982 to 1984. He knew the offender as someone involved with the IRB. On an occasion when MW was 11 years of age, in the summer during the period January to March 1984, he went into the area of the surf club where the IRB was kept, the roller door to that area being open. MW was wearing Speedo swimming costumes at the time. The offender approached him and put his hands down the back of his swimmers and over his anus and said words to the effect of “do you like bum cuffs?”. The offender then proceeded with one of his hands to cup MW’s penis. The offender then pulled the garage door to that area down and lifted MW from the floor. MW managed to break away from the offender and said he was going to tell his brother and the incident ended.

25. MW first disclosed the offence to a girlfriend when he was in his twenties and broke down when he did so. The offence concerning MW occurred when the victim was 11 years of age and at that time the offender would have been a juvenile, 16 years of age.

26. There are Victim Impact Statements from each of the victims before me. A reading of those impact statements, consistent with what this Court knows about the impact of child sexual offending upon a person, shows that the offending has had a lifelong adverse effect upon them. I have had regard to the trauma the victims have experienced as a consequence of the offences in accordance with s 25AA(3) of the Crimes (Sentencing Procedure) Act in arriving at an appropriate sentence.

Objective seriousness

27. Turning then to my assessment of the objective seriousness of the offending. All sexual offending against young children, especially young children under or around 10 years of age, is by its very nature serious. The Crown however, correctly in my view, did not submit that any of the aggravating factors contained in s 21A of the Crimes (Sentencing Procedure) Act applied here.

28. The age of the child is always a relevant factor to have regard to when sentencing for this type of offending and in particular, how it relates to the maximum age of children who fall within the particular statutory provision. The age difference between a victim and an offender is also another relevant matter to have regard to when sentencing for this type of offence.

29. In relation to the nature of sexual intercourse, as far as the law is concerned, there is no hierarchy of sexual intercourse. Generally speaking penile/ anal intercourse is considered to be more serious than fellatio and digital penetration of the anus.

30. I have approached my assessment of the objective seriousness of each of the offences here in accordance with those principles.

31. There is some imprecision here in relation to the age DB was at the time of the offences concerning him and how old the offender was at that time. For the reasons I gave earlier, I cannot find beyond reasonable doubt that the offending occurred on or after the date the offender turned 18 being 7 August 1985.

32. Given DB’s date of birth, the offending against him occurred when he was eight or nine years of age and the offender would have been 16 or 17 years of age, some 8 or 9 years older than the victim. The victim was therefore about half the age, being the maximum age of 16 years, caught by each of the relevant statutory provisions. The age differential between the offender and DB was significant, a young boy not yet into adolescence and a boy on the edge of manhood, but not as significant as it often is in these cases.

33. I assess the offence in count 4, being an act of fellatio on DB, to be below a notional mid-range offence but not at the bottom of the range of objective seriousness. I assess the offences in each of counts 5 and 6 as being below the mid-range of objective seriousness but not at the bottom of the range. I consider the offence in count 6 to be more serious than the offences in counts 4 and 5 because count 6 involved the young victim fellating the offender. I assess the offence in count 7 as being towards the lower end of the range of objective seriousness for such offending.

34. In relation to the offences concerning RC, for the reasons I have already given, I am satisfied beyond reasonable doubt that the offence occurred in the summer of 1985/86. RC was nine years of age and the offender was 18 years of age. RC was approximately half the maximum age of a child that is caught by the offence creating provisions. While the offender was twice the age of RC, the age difference in years is 9, which as I observed earlier, is less than is often the case in such cases. I assess the objective seriousness of the indecent assault offence in count 8, being a massaging of the boy’s testicles, as being towards the lower end of the range of objective seriousness, noting that it led into the digital penetration which constitutes the sexual intercourse in count 9. The sexual intercourse without consent offence in count 9 I assess as being below the mid-range level of objective seriousness.

35. In relation to the indecent assault offence against MW, being the offence in count 11, the victim was 11 and the offender was a juvenile, 16. The age differential between the two of them was 5 years. I assess the objective seriousness of that offence as being towards the lower end of the range of objective seriousness for such offences.

The offender’s subjective case

36. Turning then to the offender’s subjective case. He is a 53 year old male of Italian descent. The offender has no prior criminal history and that entitles him to leniency here, especially given his age at the time of the offences, and he has not been convicted of any further offending since the time of these offences.

37. I referred earlier to the fact that this trial was a re-trial. The offender was sentenced by Judge Lakatos at the conclusion of the original trial on 13 December 2017. I will discuss a little later in more detail some aspects of his Honour’s sentencing remarks, but will observe that the offender served some 822 days in custody before obtaining bail consequent upon his successful appeal. I will, in imposing sentence here, have regard to the period of time that the offender has spent in custody as pre-sentence custody.

Documentary material

38. In terms of documentary material, I have before me a psychological report by Julie Dombrowski, psychologist, dated 1 July 2021 and two testimonials dated 30 June 2021 and 1 July 2021 respectively. The offender did not give evidence on sentence so his assertions to the psychologist have not been tested and I have had regard to that fact in assessing what weight to give to that report.

Family background

39. In terms of his family background, according to the psychologist’s report, the offender was born in Italy and migrated to Australia with his parents and two older brothers when he was ten years of age. The offender described his family as being close and loving. He denied any neglect or abuse in the home. The offender did report feeling somewhat ostracised in the community due to his Italian heritage. The offender told the psychologist that when he was 18 years of age in 1985 his father committed suicide. He reported feeling shocked and devasted by the loss. The offender stated that he and his brothers worked together to support their mother financially and emotionally. In 2015 his mother died of cancer. The offender remains close to his brothers who are supportive of him and were supportive of him during the trial.

Education and employment history

40. Turning then to the offender’s education and employment history. The offender reported that he completed year 12, typically achieved average grades and was relatively engaged in school life. The offender reported having worked consistently since the age of 15 and after leaving school he has worked in a variety of roles including as a hospital orderly and for airport security agencies. His employment in airport security ceased when he was incarcerated in 2017. Since his release from prison in 2019 the offender has struggled to secure employment and currently works casually as a bottle shop attendant.

Substance use

41. He denied any illicit substance use to the psychologist and had no problematic use of alcohol.

Sexual and relationship history

42. Turning to the offender’s sexual and relationship history. The offender told the psychologist that when he was between 16 to 19 years of age he was sexually groomed and abused by a local man at the Bronte Surf Lifesaving Club. He told the psychologist that he felt confused by the abuse and that it did not feel right, and disclosed it to senior members of the Surf Lifesaving Club, however the sexual contact continued regardless. The offender stated that he perceived this as minimising or condoning the sexual abuse.

42. He told the psychologist that he experienced the abuse as confusing and manipulative but not harmful and distressing. The offender told the psychologist that he began dating in his late adolescence before realising his same sex attraction to men in his early twenties. He has been in his current relationship for the past five years. The offender denies experiencing any sexual difficulties in his past relationships or having a specific interest in young boys.

Psychological/ psychiatric history

44. The offender had no prior psychological history until he was diagnosed with depression by his GP in 2019 following his release from prison. He told the psychologist that he was further diagnosed with anxiety in 2021, arising from Court proceedings. The psychologist offered a formal diagnosis of Adjustment Disorder with mixed anxiety and depressed mood following his incarceration of 2017 and re-trial in 2021.

45. Upon psychometric assessment by the psychologist the offender was found to be alert and oriented and there were no concerns raised as to his cognition. The psychologist considered that there was no evidence of any severe personality pathology including antisocial or sadistic predisposition. Current difficulties with anxiety were said to be evident in his profile which is understandable given his current predicament.

Attitude to the offence

46. The offender denies having committed these offences and maintains his innocence which is of course his right, but it means there is no remorse or insight into the offending. The psychological report notes that the offender was aware of laws prohibiting sexual contact with children and reasons for these laws, “they’re not sexually developed” and “can’t make choices yet”, however he struggled to articulate the potential harms of sexual abuse on children.

Future and risk of reoffending

47. The psychological report recorded the offender as being in the average risk category for being charged with or convicted of another sexual offence. His risk of committing further sexual offences in the community was assessed as relatively low. In that regard I note he has not been convicted of any offences since these offences in the 1980s.

Imposition of sentence

Judge Lakatos’ sentencing judgment

48. Turning then to Judge Lakatos’ sentencing judgment on 13 December 2017. His Honour’s judgment has been placed before the me to deal with certain issues of some complexity that arise in this sentence. It is important to stress that the sentencing task I am to undertake is very different to the task His Honour was required to undertake. His Honour was sentencing the offender for 31 counts of historical child sexual offending after trial, whereas I am sentencing the offender for 7 counts. The offences His Honour was sentencing the offender for related to five complainants, whereas I am only sentencing the offender for offences that relate to three of those complainants.

49. In approaching the current sentence I am to have no regard of course to any of the 24 offences that the offender has now been found not guilty of which were before His Honour.

50. His Honour sentenced the offender prior to the introduction of s 25AA of the Crimes (Sentencing Procedure) Act. In compliance with the principles applicable to the sentencing process that His Honour was engaged in, His Honour sentenced the offender in accordance with the principles outlined by the Court of Criminal Appeal in the decision of R v MJR [2002] NSWCCA 129 and other such cases. Three of those principles were as follows: That His Honour was to take account of the sentencing principles that existed as at the time of the offences. That it was established that the sentences imposed for sexual offences against children were shorter in the mid 1970s and the mid 1980s for offences of sexual intercourse and indecent assault than they are today. The third principle was that it was acknowledged that as at the time of the commission of the offences here, the approach to accumulation of sentences was more lax as the decision of the High Court in Pearce [1998] HCA 57 had not been handed down.

51. His Honour, in his remarks on sentence, also considered a submission by the offender’s then counsel as to the relevance of the fact that the offender was between 16 and 18 years of age as at the time of the offences and what weight could be attached to his relatively young age as at the time of the offences.

52. In considering the age of the offender and its relevance to the sentencing His Honour was undertaking, His Honour said:

“Had the offences been a lesser number and involving a less number of victims greater weight could be attached to the offender’s comparatively young age when these offences were committed. However in my mind given the number of victims and the extensive nature of the offending, it is clear that the offender committed the offences in an adult like manner by grooming and paying the victims and here I refer to S and JF, and by using the access that he had to young boys at the surf club to gain access to potential victims.”

53. I have put out of my mind the allegations that were brought by JF in relation to himself and his cousin, given the offender has been acquitted of those allegations. I also have to acknowledge in my approach to the relevance of the offender’s age to the sentences that I am to impose, that I am dealing with an offender who has committed less than a quarter of the offences that His Honour was concerned with.

54. I will return to the relevance of s 25AA of the Crimes (Sentencing Procedure) Act and the relevance of the offender’s youth shortly. But before I discuss those issues further, I consider it appropriate to note the sentences His Honour imposed for the offences that I am to sentence the offender for. His Honour utilised the aggregate sentencing provisions which I will also use. The indicative sentences that His Honour recorded before imposing an aggregate sentence are as follows.

55. On the offence that constitutes count 4 on the indictment before me, His Honour recorded an indicative sentence of 3 years and 6 months with an indicative non-parole period of 2 years and 6 months. On the offence that constitutes count 5 on the indictment, an indicative sentence of 3 years and 6 months with an indicative non-parole period of 2 years and 6 months. On the offence that constitutes count 6 on the indictment, an indicative sentence of 3 years and 6 months with a non-parole period of 2 years and 6 months. On the offence that constitutes count 7 on the indictment before me, an indicative sentence of 9 months. On the offence that constitutes count 8 on the indictment before me, His Honour recorded an indicative sentence of 18 months. On the offence that constitutes count 9 on the indictment before me, His Honour recorded an indicative sentence of 4 years with an indicative non-parole period of 2 years and 9 months. On count 11 His Honour recorded an indicative sentence of 18 months imprisonment.

56. I note His Honour recorded for many of the offences indicative non-parole periods which, as they are not the subject of standard non-parole periods, he was not required to do. For completeness, I note that His Honour imposed an aggregate sentence in relation to all 31 offences that he sentenced the offender for of 14 years imprisonment with an aggregate non-parole period of 8 years.

Principles of re-sentencing following a successful sentence appeal

57. It was accepted by the offender’s counsel that s 25AA of the Crimes (Sentencing Procedure) Act applied to the offender’s sentence. As I understand that concession it is said to flow from the majority decision in Corliss v R [2020] NSWCA 65 in which the majority of the Court of Criminal Appeal were of the opinion that when that Court re-sentenced an appellant after having allowed a sentence appeal from a sentence imposed prior to the introduction of s 25AA, the Court of Criminal Appeal is required to re-sentence in accordance with its terms. The majority expressed the opinion that s 25AA of the Crimes (Sentencing Procedure) Act applies to all relevant child sexual offending sentences imposed after the commencement of the provision.

58. While I find the reason of Brereton JA in dissent in that case to be very persuasive, I consider that I should approach the issue in accordance with the majority view. It seems to my mind somewhat unfair that an offender who establishes in the Court of Criminal Appeal that he did not originally receive a fair trial according to law, has his convictions and sentences set aside, has very significant success in his re-trials but then finds that he is to be sentenced on an entirely different, more adverse basis. I say no more about it as I consider that I should approach the issue in accordance with the majority view expressed in Corliss.

59. The maximum penalties that apply to the offences are those that were applicable as at the time of the offences and there are no applicable standard non-parole periods. I am required however, unlike Judge Lakatos, to sentence the offender in accordance with today’s sentencing patterns and practices and not those that applied at the time of the commission of the offences. Whereas here there is no apparent sentencing pattern existing for the offences under consideration, I am required to approach the sentence in accordance with the steps set out in para 123 of R v Cattell [2019] NSWCCA 297 and I have adopted that approach here.

60. I note that in that regard, Courts these days are more conscious of the harm done to children by sexual offending than they were in days gone by. I also note that since the decision of the High Court of Pearce the approach to accumulation of sentences, especially where there is more than one victim involved, is that there should be a degree of reasonable accumulation of the sentences. I also note that applying current sentencing practices, absent special circumstances, a non-parole period should be 75% of the term of any sentence imposed.

61. In consideration the application of s 25AA of the Crimes (Sentencing Procedure) Act both the Crown and counsel for the offender drew my attention to what was referred to as the “ceiling principle”, usually applicable when a person is sentenced after they have been granted a re-trial and again convicted of the same offence. In R v Gilmore (1979)1 A Crim R 416 the then Chief Justice, Sir Laurence Street, with whom Lusher J agreed said:

“It is a sound principle of sentencing that on a new trial consequent upon the quashing of a conviction by the Court of Criminal Appeal the accused should ordinarily not receive a longer sentence or non-parole period than those following upon the first trial. The application of this ordinary principle will of course necessarily yield in relation to the non-parole period if there is some significant subsequent circumstance to be taken into account. For example, an escape from custody pending the new trial or the committing of other offences whilst on bail, resulting in either case in the imposition of a sentence prior to the new trial itself would have a direct significance upon the non-parole period to be specified if the new trial results in a conviction. But so far as concerns the head sentence that past on the first trial should ordinarily not be exceeded if the new trial results in conviction again.”

62. His Honour then set out the policy reasons why that approach should be taken, which I will not read onto the record. Later the then Chief Justice said:

“The principle to which I refer restricts the upper limit o f the sentence on the new trial. It does not operate to restrict the discretion to pass a lesser sentence.”

63. There has been some amelioration of these principles in terms of a sentencing Judge’s discretion after a re-trial following a successful appeal in decisions such as R v Bedford (1985) 5 NSWLR 711, R H McL v The Queen [2000] HCA 46, Tarrant v R [2007] NSWCCA 124, R v MM [2002] NSWCCA 431. The sentencing Judge is free not to perpetuate a sentence that he or she considers is manifestly inadequate or may impose a heavier sentence if different facts are found justifying a heavier sentence. Otherwise it appears that the principles in Gilmore are still applicable in this situation.

64. The Crown argued that the introduction of s 25AA of the Crimes (Sentencing Procedure) Act meant that the principles discussed by the Chief Justice in Gilmore have no application here. I do not accept that submission. The principle was clearly articulated by the then Chief Justice and I see no intention in s 25AA to override that principle and have noted that there has been some modification to the principle over time. Strictly speaking, the comments by two members of the Court of Criminal Appeal in Corliss are obiter.

65. The majority found no error in the sentence below and the Court did not re-sentence the appellant in that case, so it cannot be said that their comments on the applicability of s 25AA of the Crimes (Sentencing Procedure) Act are part of the ratio of the case. I also can see no reference to the decision in R v Gilmore and the subsequent decisions concerning that principle in the judgments of the majority. Also, the majority was specifically directing their comments as to what is to occur when the Court of Criminal Appeal re‑sentences someone after having found error in the original sentence.

66. The situation I am confronted with is not the same as the hypothetical situation considered by the majority in Corliss. Of course their Honours’ opinion as to the scope of the application of the provision remains persuasive and I accept I should approach this sentence consistent with it.

67. An additional complicating factor in relation to the application of the so called “ceiling principle” here is that the only sentence actually imposed on the offender at the earlier trial was the aggregate sentence of 14 years imprisonment with a non-parole period of 8 years. The indicative sentences for the individual counts are not sentences actually imposed upon the offender but are an indication of what would have been imposed if he had been dealt with separately for the offence to which the indicative sentence related.

68. As I have already said I propose to apply s 25AA of the Crimes (Sentencing Procedure) Act when sentencing the offender. I consider, however, that in the circumstances here, I should not record indicative sentences greater than those indicated by Judge Lakatos for the offences that I am to sentence the offender for, having regard to the principles discussed in Gilmore. I also consider that I am free, should I consider it appropriate, to record lesser indicative sentences than those recorded by his Honour.

Relevance of offender’s youth

69. Turning then to the relevance of the offender’s youth. My findings in terms of the offender’s age at the time of the commission of the offences that I am to sentence him for, which I referred to earlier, are as follows.

70. At the time the offences committed against DB the offender was a juvenile, either 16 or 17 years of age.

71. At the time of the commission of the offences against RV offender was an adult as he had attained his 18th birthday.

72. At the time of the offence against MW the offender was a juvenile being 16 years of age.

73. When sentencing a person for an offence committed when a juvenile, different considerations apply. Generally greater weight is to be given to rehabilitation and treatment rather than to denunciation of the crime and deterrence. The relevant principles are set out in s 6 of the Children’s Criminal Proceedings Act. The closer a child is to their majority and the more adult like their conduct, the less emphasis is placed on rehabilitation and treatment when sentencing a child. Even when sentencing someone as a young adult offender who has only recently turned 18, it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender. See the summary of relevant principles in Bullock v R [2016] NSWCCA 131.

74. I set out earlier Judge Lakatos’ approach to those principles when he sentenced the offender. Two of the factual bases for Judge Lakatos giving less weight to the principles associated with sentencing a juvenile or young adult offender are no longer present here, and I propose to give considerable weight to those principles.

Sentence

75. The offences I am to sentence the offender for occurred more than 35 years ago. Of course the offender has had the bulk of that time in the community and had a long period of time before being brought to account for his offending. He has now, over the last four years, been through five trials and one appeal. Of course I must approach this sentence as I have stressed, putting out of my mind the result of the trial before Judge Lakatos and the evidence I heard in the other two trials that were conducted before me.

76. Delay is a relevant factor to have regard to. The offender on the evidence before me has not committed any other offence since the offences that I am to sentence him for. This is a relevant fact to have regard to in considering his prospects of rehabilitation. It is of course common for there to be delay in the bringing of complaint for child sexual abuse. Here there is evidence that the three victims did complain to relatives and or friends about the allegations many years ago, although delayed in going to the police. In saying that I am in no way critical of the victims, as it is often the case, for very understandable reasons, victims delay in complaining to authorities about such offences.

77. I note also, on the evidence before me, there is no evidence that the offender knew of these allegations prior to being charged with them, hence he was not living with the threat of possibly being charged hanging over his head.

78. I have also had regard to the fact that since obtaining bail after his successful appeal from the trial before Judge Lakatos, the offender has been in the community since 29 August 2019, a period of almost 2 years. There is no suggestion he has not complied with his bail conditions or re-offended. I have little doubt that a return to custody is weighing heavily upon him.

79. There was no plea of guilty, so there is no discount of the sentence. As I noted earlier, the offender maintains his innocence which is his right, but it means there is no remorse.

80. Given his good character, his family support and the fact that he has not been convicted of any criminal offence since these offences, he has good prospects of rehabilitation despite not acknowledging his guilt.

81. In setting the non-parole period I will make a finding of special circumstances. That finding is made having regarding to the young age the offender was at the time of the offences, the fact that he is returning to custody after a significant period in the community and that he is returning to custody at a time when the COVID-19 pandemic has resurged in this State and city. The public health orders mean that no in-person visits to gaols will be possible and it is unknown for how long that situation will continue. Anyone being sentenced at this time would have a heightened sense of anxiety.

82. In determining the appropriate date to commence the sentence, I have had regard to the fact that the offender has already spent 822 days in custody in relation to the aggregate sentence that Judge Lakatos imposed upon him. I will backdate his sentence to commence from 9 April 2019 to reflect pre-sentence custody. I, like Judge Lakatos, will utilise the aggregate sentencing provisions in relation to the offences that I consider require a sentence of imprisonment. If I had not done so my approach to accumulation would have been that there should be a reasonable degree of accumulation to reflect the number of offences and the number of victims.

83. I have had regard to the objectives in sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victims and community and rehabilitation of the offender.

75. Sexual offending against young, vulnerable children is abhorrent to all right thinking members of our community. Young children should be free to enjoy their childhoods without being preyed upon by sexual predators like this offender. In recent years the Courts have been inundated with cases involving child sexual abuse, no doubt reflecting the sad fact that such offending has a degree of prevalence in our community.

76. This offender is indeed fortunate that he is being sentenced under old statutory provisions. The acts of fellatio and of digital penetration of a boy’s anus where the boy is under 10 years of age now carry maximum penalties of life imprisonment. In saying that I have not had any regard to the maximum penalties that now apply to such conduct when sentencing this offender. The sentence imposed here must be of sufficient severity to deter not just this offender, but others, from engaging in such conduct.

77. The maximum penalties have been taken into account as legislative guideposts. I have considered whether the only appropriate sentence for each of the offences is one of imprisonment. Given my assessment of the objective seriousness of count 7 and 11 and the age of the offender at the time of those offences, together with other aspects of his subjective case, those offences do not call for a sentence of imprisonment in my view.

78. On counts 7 and 11 I record convictions and order that the offender enter into, on each count, a Community Corrections Order for a period of two years. The standard conditions attach to those orders, being he must not commit any criminal offence and he must appear before this Court if called upon to do so.

79. In relation to the balance of the offences, I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence I have had regard to all of the objective and subjective factors I referred to earlier.

80. Mr A the sentences you will hear me first announce are what are called indicative sentences. You will then hear me announce an aggregate sentence which is the sentence and the non-parole period that you will serve. It is not arrived at by simply adding up all of the indicative sentences. By announcing the aggregate sentence, I will tell you the date it starts from, the date it ends and the date when you are first eligible for parole.

81. On count 4, being sexual intercourse with DB without his consent, there is an indicative sentence of 2 years imprisonment.

82. On count 5, being sexual intercourse with DB without his consent, there is an indicative sentence of 2 years imprisonment.

83. On count 6, being sexual intercourse with DB without his consent, there is an indicative sentence of 2 and a half years imprisonment.

84. On count 8, being an indecent assault of RC, I record an indicative sentence of 16 months imprisonment.

85. On count 9, being sexual intercourse with RC without his consent, I record an indicative sentence of 3 years imprisonment.

86. I impose an aggregate sentence of 5 years imprisonment with an aggregate non-parole period of 2 and a half years imprisonment. The sentence commences on 9 April 2019 and expires on 8 April 2024. The non-parole period expires on 8 October 2021. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 8 October 2021. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

87. The non-publication order in respect of the offender’s name I now revoke. Obviously the non-publication of the victim’s names remains in place. (Subsequently, having regard to the provisions of the Children (Criminal Proceedings) Act, I considered it appropriate to maintain a non-publication order in relation to the offender’s name. See s.15A)

Orders

1. The offender is convicted of the offences of which he was found guilty by a jury after trial

2. Record the following indicative sentences:

1. On count 4, being sexual intercourse with DB without his consent: 2 years imprisonment.

2. On count 5, being sexual intercourse with DB without his consent: 2 years imprisonment.

3. On count 6, being sexual intercourse with DB without his consent: 2 years and 6 months imprisonment.

4. On count 8, being an indecent assault of RC: 16 months imprisonment.

5. On count 9, being sexual intercourse with RC without his consent: 3 years imprisonment.

3. Record an aggregate sentence of 5 years imprisonment with an aggregate non-parole period of 2 years and 6 months. The sentence commences on 9 April 2019 and expires on 8 April 2024. The non-parole period expires on 8 October 2021.

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Amendments

19 August 2021 - Amended headings and removed identifiers

Decision last updated: 19 August 2021