R v Cameron (a pseudonym)

[2018] NSWDC 432

District Court

New South Wales

Medium Neutral Citation:	R v Cameron (a pseudonym) [2018] NSWDC 432
Hearing dates:	31 August 201814 September 2018
Date of orders:	14 September 2018
Decision date:	14 September 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 6 years with a head sentence of 8 years.
Catchwords:	CRIMINAL LAW – Sentence – Historical sexual assault – Totality - Assault male and commit act of indecency – Offender on bond at time of offending
Legislation Cited:	Crimes Act, Crimes (Sentencing Procedure) Act
Cases Cited:	.
Category:	Sentence
Parties:	The Crown Michael James Cameron
Representation:	Counsel: C Evans – Crown S Healy - Offender   Solicitors: Director of Public Prosecutions
File Number(s):	2017/79846
Publication restriction:	There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant

SENTENCE

1. HIS HONOUR: The offender Michael James Cameron is in a very familiar place for him, the dock of a criminal court awaiting sentence for child sexual assault matters.

2. I am to sentence him for four offences which he committed in 1979. Since he committed those offences he has been sentenced for the following offences:

• Four offences of buggery with four further offences of buggery, six offences of indecent assault male and one offence of unlawful intercourse being taken into account. He was sentenced to imprisonment for nine years with a non-parole period of three years in 1984.

• One offence of commit an act of indecency with or towards a person for which he received a further three years imprisonment in 1989.

• One offence of indecent dealing with a child under the age of 12 years, with circumstances of aggravation, a Queensland offence for which he was sentenced in 1993 to two years.

• Three offences of aggravated assault of a sexual nature on a male child under the age of 14 years, another Queensland offence. In 1994 he was sentenced to imprisonment for a period of one year, the sentences concurrent with each other, but accumulative on the existing Queensland sentence I have mentioned already.

• Also in 1994 he was sentenced for three offences of indecent dealing of a child with circumstances of aggravation, also Queensland offences, for which he was sentenced to imprisonment for a period of one year, the sentences concurrent with each other, but cumulative on both the existing Queensland sentences to which I have referred.

3. In 2000 he was sentenced to imprisonment for two offences of having homosexual intercourse with a male between ten and 18 and three offences of having sexual intercourse with a person under the age of 12 years under his authority. The net effective sentence was nine years six months imprisonment with a non-parole period of seven years six months.

4. The offender has not been released from custody since then, because of other sentences which have been imposed on him.

5. They include six offences of indecent assault on a male, four offences of attempt buggery and one offence of buggery, a total of eight victims with a further 22 offences. 20 of them being indecent assault on a male, taken into account on five different Forms 1. The offender was sentenced in 2007 for those offences which resulted in a total sentence of 11 years imprisonment with a non-parole period of eight years, commencing about 11 months before the expiry of the non-parole period in the sentence imposed in the year 2000.

6. Then there was finally one offence of assault on a male with one or two further such offences being taken account, the uncertainty arising because of an inconsistency between the criminal record and the remarks on sentence. In 2016 he was sentenced to imprisonment for two years and three months with a non-parole period of 12 months. The non-parole period of that sentence expired on 23 November 2017 and the offender has been bail refused in custody since that date.

7. Including the charges for which I am to sentence him he has sexually assaulted 16 children in his 62 years in various parts of New South Wales and Queensland. One only needs to consider the litany of this man’s offending to appreciate the misery for which he is responsible. Given such a history it could be expected that the offender has spent a long time in custody and he has. He has been in custody for 27 of his 62 years and spent a further four or five years on parole.

8. More significant perhaps is the continuous custody to which the offender has been subject. Up until today he has been in continuous custody since 18 December 1998, a period of almost 20 years. In that time he has served sentences imposed by Judge Ducker in Lismore, Judge Donovan in Sydney and Judge Ellis in Newcastle. The principal of totality clearly applies, so what I have to do is to examine the offences for which sentences were imposed by those judges as well of the offences for which I am to sentence the offender, then decide what sentence the offender would have received had he been sentenced for all matters at the same time and impose sentence accordingly. This means that the extra punishment I will impose on the offender for the offences before me completely fails to reflect the seriousness of his conduct and the harm that he caused to the victim of it.

9. I will not refer to the victim by name in order to protect his privacy. Sometimes victims feel that when they are referred to by “the victim” their humanity has not been appreciated. I mean no such conclusion to be drawn. I am full conscious that the person I am speaking about is not simply a victim, but a human being.

10. His parents separated when he was about five. At about the same time he started playing Rugby Union Football, playing for rugby clubs in a northern suburb of Sydney. It was through there that he met the offender, who was a coach of Rugby Union teams. The relationship between the victim and the offender became closer when the victim’s mother commenced a relationship with the offender and he moved in with the victim and his family in 1997. It was in this context that the four offences for which I am to sentence the offender were committed.

11. In 1979, when the victim was nine years of age, he was being driven by the offender during the daylight hours. He was sitting in the front passenger seat, the offender being in the driver’s seat. The victim was wearing football shorts and a T‑shirt. When the car stopped at an intersection the offender put his hand on the victim’s right leg and rubbed up and down. After a short period of time the offender reached inside the victim’s underwear and pulled his penis out of the leg of the victim’s shorts. The victim recalls at the time thinking this was weird. The offender did not look at the victim and just said “It’s all right, this is what men do” or words to that effect. The offender continued to touch the victim’s penis while he drove the 3 kilometre distance to the victim’s home. Once they arrived home the offender took the victim into the television room. There was no one else at home. The offender pulled the victim’s pants down around his ankles and sucked his penis. Not surprisingly this nine year old boy had no idea what was happening. The victim says that this behaviour occurred in the TV room on other occasions, but he cannot remember the details.

12. Those two offences, the one at the traffic lights and the one in the TV room are both offences under s 81 of the Crimes Act, as it was then, offences of assault male and commit an act of indecency.

13. The next two offences were more serious. About a week after the incident I have just described the victim and the offender were home together. The victim’s sister was watching television and his mother was cooking dinner. The offender told the victim that they were going to have a bath. The offender took the victim into the bathroom, put a towel on the ground, took the victim’s clothes off and then his own. The offender positioned the victim in such a way that he was lying down against the bath. He rubbed saliva on the victim’s bottom and then the top of his own penis. He then pushed his penis into the victim’s anus. Not unnaturally the victim screamed and cried loudly, but the offender’s response was not to stop, not to realise that he was causing pain to the victim, what he did was to continue moving his penis in and out until he ejaculated.

14. On another occasion, again in 1979, a similar offence occurred. Again it was in the bathroom and again the offender put his penis into the victim’s anus, pushing it in and out until he finished.

15. These two offences of buggery, as it was then, were not isolated. The behaviour occurred on other occasions with no one else around. On each occasion, the victim says, that these things were so painful that he would scream and cry. He was told by the offender to never say anything about what was going on between them.

16. The victim had told people about these events over the years, including his mother, his sister and his wife, but never in specific detail. Finally he went to the police and gave a statement. The offender was in custody at the time. He was charged by police, offered the opportunity to be electronically interviewed, but declined.

17. The victim has prepared a Victim Impact Statement. It speaks eloquently of the harm that the offender’s crimes have caused him. In particular he says, “That man has never left my mind since. I really don’t think a day has passed in my life that he hasn’t entered my mind. Even in my sleep he appears.”

18. The victim speaks about the consequences for him, including a sense of never trusting anyone and in order to do that his sense of compassion was, he says, non-existent. He blames the offender for taking the best part of his life.

19. The harm that the victim describes was entirely foreseeable. He suffered not only physical pain, but the emotional consequences of the offender using him as an object of sexual desire. The offender is entirely responsible for the harm that he has caused not only this victim, but 15 other boys.

20. Although I have referred in detail to the offences currently before me I will not do so in relation to the offences for which the offender was sentenced by Judges Ducker, Donovan and Ellis. What the offender did on those occasions is set out in the remarks on sentence before me. Suffice to say that such a history of conduct is sadly not unfamiliar to the courts, where committed paedophiles pursue their sexual interest in children over many years. Indeed, Mr Healy relied on a Court of Criminal Appeal decision where a number of such offenders’ sentences were examined. Of course, since 1998 the offender has been unable to commit any further offences of this nature, being locked up away from children.

21. He was born in Moree, but when he was 12 years old he moved with his family to Sydney. He completed his HSC. He had an unremarkable childhood, although he described on an earlier occasion his relationship with his parents as stormy. Nevertheless the home appears to have been a pro-social one, with no indications of any abuse. He has not had any contact with his family since about 1997. He has never married, but has had six live-in relationships, two female and four male. He has had one son, who died unfortunately at the age of 12 in a car accident. Before going into custody he was employed in a range of occupations, primarily as a truck driver. He had other positions as well, which led to allegations being made against him and then losing his jobs.

22. As far as his sexual offending is concerned that began in 1973 when he was 17 years of age when he abused a young male relative. At first he abused children who were part of his extended family, but then began offending against other boys, as I have noted above, both in New South Wales and Queensland.

23. Since going into custody, where he has been for many years, he has made some efforts to rehabilitate himself. He has completed the CUBIT program and, as Mr Healy submits, seems to have done as much as he can do to demonstrate the willingness to rehabilitate upon his release from custody. Unfortunately, of course, what will happen once he is released from custody is very uncertain. The offender has demonstrated a continuing attitude of disobedience to the law in a very particular respect. Whether the intervening years have allowed him to take control of his behaviour remains to be seen. The offender’s efforts at rehabilitation, of course, have to be acknowledged, but it is impossible to say that his prospects of rehabilitation are good.

24. At this stage what I need to do is to decide a legal issue.

25. Quite recently, a fortnight ago, a new section in the Crimes (Sentencing Procedure) Act became operational. This section was introduced in response to the deeply disturbing findings of the Royal Commission into Institutional Responses to Child Sexual Abuse. Parliament is to be congratulated for having introduced the new provision. What it is not to be congratulated for is the imprecision of many aspects of the new provisions. Judges should not be expected to do the work parliament should have done. Nor is parliament to be congratulated for having missed the target in one particular respect.

26. Section 25AA is a section which should be straightforward, but in some respects it is not. As far as the matters before me are concerned it is clear that the new provision applies to the offences of indecent assault on a male, but it is not at all clear whether it applies to the offence of buggery. There are a cascading series of questions that need to be answered in determining whether the offence of buggery is a “child sexual offence” for the purposes of s 25AA. That offence is not specifically listed as a child sexual offence in either s 25A(5)(a) which refers to various provisions in the current Crimes Act, or s 25AA(5)(b), which lists former sexual offences in sch 1A of the Crimes Act. But it is clear that parliament did not intend to exhaustively list all the offences which it considered to be child sexual assault offences, because s 25AA provides that an offence under a previous enactment, that is “substantially similar” to offences referred with specificity in s 25A(5)(a) to (c) is also to be considered to be a child sexual offence.

27. The Crown suggests that the reason that parliament did not do the job of specifically stating which offences are and which are not child sexual assault offences is because of the extensive history of amendments to relevant parts of the Crimes Act. Given that the job has to be done in any case and that it has to be done by someone, whether parliament or a judge, it would have been better if parliament had done the work to avoid the necessity for individual judges to make individual judgments about what offences are and are not included under the new provision. Ultimately the question becomes one of me determining whether the offence of buggery is substantially similar to any other offence in the sch 1A of the Crimes Act. The Crown accepts that in determining whether an offence is substantially similar to another I look at the elements of the offences, not the particular facts of offences which can be caught by the two offences. When I do that I find that the offence of buggery is not substantially similar to another offence in the schedule. Buggery, one of two offences covered by then s 71 of the Crimes Act had a single element, penile/anal penetration. There was no age element. It did not cover other forms of intercourse. The Crown says that buggery is substantially similar to offences covered by s 66A of the Crimes Act, but that offence has an age element and covers many forms of sexual intercourse. True it is that there is some overlap, but offences cannot be substantially similar when many offences of buggery would not be caught by s 66A (every offence where there is not a person under ten involved) and many offences under s 66A would not be covered by buggery (every offence involving digital penetration or fellatio or cunnilingus). The result is that s 25AA does not apply to the sentences I will impose for the offences of buggery.

28. What follows? Well clearly, therefore, I have to have regard to sentencing practices and patterns for the offence of buggery in the late seventies and early eighties, but what were they? In this case neither party put before me anything which would indicate what the sentencing patterns and practices were for offences in buggery in 1978. The most I have is the sentences imposed on the offender himself in 1984 for offences of buggery, and Judge Donovan’s sentences for buggery and attempted buggery committed in the mid‑1970s. I do not even have any personal knowledge of sentencing patterns. I was not a lawyer in 1979 and was only appointed a Crown Prosecutor in 1987, eight years after these offences occurred. I guess I have to do the best I can on the limited material available.

29. I take into account the offender has pleaded guilty to these offences. The pleas were late and so the sentences I will impose are about 10% less than they would otherwise have been. Although I am, of course, only to sentence the offender for these four offences on the indictment I am able to take into account that it is not a mitigating feature that these offences were isolated, the victim refering to other instances of similar conduct.

30. I have to assess the objective gravity of the offences. The buggery offences in particular were very serious. I have already mentioned on more than one occasion that they caused the victim to be in considerable pain and crying. In addition the offender had quasi parental role, playing the role of a stepfather at the time. On top of that he was on a bond at the time for an offence of assaulting a child.

31. It is undeniable that there has been some considerable delay and that the offender may well have thought that upon the expiry of his non-parole period on 23 November 2017 his time in custody would be finally at an end.

32. As Mr Healy and the Crown both appropriately noted, the question of totality is at the forefront of this sentencing exercise. That does not mean, of course, that the selection of the length of sentences is immaterial, it clearly is not. I need to assess the objective gravity of the offender’s crimes as part of my role in determining an appropriate sentence to impose upon the offender, even if, because of the principal of totality, the actual extension of the offender’s time in custody is much less than the overall length of sentence I will shortly announce. There needs to be, Mr Healy submitted and the Crown, I think, accepted, a considerable period of concurrency, such that the starting date for the sentences, I will shortly announce, has to extend well before 23 November 2017 to reflect the principle of totality.

33. I should speak about whether there are special circumstances in this case. I am satisfied that there are none, and I say that despite acknowledging the very lengthy time in custody the offender has already served, continuous custody at that, which would ordinarily result in a finding of special circumstances in the offender’s favour. Indeed, the period of eligibility for parole is much smaller than a quarter of the total effective sentence, when all sentences since Judge Ducker’s sentence in 2000 are taken into account. The period of eligibility for parole I have chosen is enough to allow the offender to be reintroduced into society with assistance from the Probation and Parole Service. In particular as regards his propensity, at least in the past, to molest children, the period he may be on parole will be sufficient for his behaviour to be monitored.

34. I acknowledge this, the extra punishment, I will shortly announce, grossly undervalues the harm the offender caused to the victim in this matter. I would not be surprised if he and his loved ones took the view that justice had not been done by the sentence I will shortly announce. His extra time in gaol referrable to these offences is far less than it would have been had he been sentenced for these matters in isolation, but that is a regrettably common place feature, which arises from the way the law says judges should sentence offenders who have committed, many, many crimes over a period of time.

3. I will impose an aggregate sentence. Were I not to have done so I would have imposed the following sentences:

4.    Count 1, two years imprisonment.

5. Count 2, four years imprisonment.

6.    Counts 3 and 4, six years imprisonment.

7. Instead I impose an aggregate sentence of eight years with a non-parole period of six years, to date from 23 November 2013. This means that his non‑parole period will expire on 22 November 2019, which is the first date on which he is eligible for parole.

8. Thank you both of you for the considerable assistance in this sentencing exercise I do appreciate it.

**********

Decision last updated: 30 January 2019