R v Curran

[2019] NSWDC 460

District Court

New South Wales

Medium Neutral Citation:	R v Curran [2019] NSWDC 460
Hearing dates:	17 May 2019, 6 June 2019
Decision date:	23 August 2019
Jurisdiction:	Criminal
Before:	Rafter SC ADCJ
Decision:	Aggregate term of imprisonment of 2 years and 4 months with a non-parole period of 16 months
Catchwords:	SENTENCING – extent of retrospective operation of provision – principle of legality – historical offences – where the offender is convicted of seven historical offences – where s 25AA Crimes (Sentencing Procedure) Act 1999 (NSW) was enacted with retrospective operation – where the provision applies to courts sentencing for historical offences – whether s 25AA cannot operate retrospectively where a proceeding has already commenced prior to the commencement of the section – whether the scope and purpose of the provision reveals a legislative intention for the provision to apply to extant proceedings   SENTENCING – special circumstances – effect of delay – hardship in custody – mitigation of sentence – variation of statutory parole period – where there has been a significant delay between the commission of the offences and the imposition of sentence – where the offender contributed to the delay – whether delay constitutes a special circumstance – where the offender was a judicial officer – where the offender is likely to serve the period of imprisonment in protective custody – whether hardship in custody constitutes a special circumstance
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No 33
Cases Cited:	AH v R [2015] NSWCCA 51 Baker v The Queen (2004) 223 CLR 513 Barbaro v R (2014) 253 CLR 58 Cheung v R (2001) 209 CLR 1 Collier v R [2012] NSWCCA 213 Flaherty v R; R v Flaherty [2016] NSWCCA 188 Greenwood v R [2014] NSWCCA 64 Hili v R (2010) 242 CLR 520 Lodhi v R (2006) 65 NSWLR 573 Markarian v R (2005) 228 CLR 372 Mayall v R [2010] NSWCCA 37 Mill v R (1988) 166 CLR 59 Morgan v R [2017] NSWCCA 269 Pearce v R (1998) 194 CLR 610 Purtill v R [2016] NSWCCA 80 R v D [1996] 1 Qd R 363 R v De Simoni (1981) 147 CLR 383 R v EGC [2005] NSWCCA 392 R v JCW (2000) 112 A Crim R 466 R v MJR (2002) 54 NSWLR 368 R v Nicholson [2018] NSWDC 347 R v Olbrich (1999) 199 CLR 270 R v Todd [1982] 2 NSWLR 517 Stanton v R [2017] NSWCCA 250 Wade v R [2018] NSWCCA 85 Wong v R (2001) 207 CLR 584
Category:	Sentence
Parties:	Regina (Crown) Graeme Bryan Curran (Offender)
Representation:	Counsel M Hobart SC (Crown) P Boulten SC and G Lewer (Offender)   Solicitors Office of Director of Public Prosecutions (Crown) Carroll O’Dea Lawyers Sydney (Offender)
File Number(s):	2017/00328847
Publication restriction:	Prohibition on publication of any matter identifying or likely to lead to identification of the complainant pursuant to s 578A Crimes Act (unless publication is made with the consent of the complainant pursuant to s 578A(4)(b)).

SENTENCE

1. HIS HONOUR: The offender, Graeme Bryan Curran appears for sentence in respect of seven offences of indecent assault on a male, committed upon AB (the complainant). The offender was tried before a jury for nine offences. On 5 April 2019 he was found guilty of counts 1-7 and not guilty of counts 8 and 9. There was evidence in the defence case that was capable of giving rise to a reasonable doubt about the time frames in counts 8 and 9 which provided a logical basis for the verdicts on those counts. Those incidents have no relevance to the imposition of sentence.

Purposes of sentencing

2. The purposes of sentencing stated in s 3A Crimes (Sentencing Procedure) Act 1999 are:

• To ensure that the offender is adequately punished for the offences;

• To prevent crime by deterring the offender and other persons from committing similar offences;

• To promote the rehabilitation of the offender;

• To make the offender accountable for his actions;

• To denounce an offender’s conduct; and

• To recognise the harm done to the victim of an offence and the community.

3. The instinctive process of sentencing requires a court to make a value judgment as to the appropriate sentence having regard to all relevant facts and circumstances, including those surrounding the commission of the offences and matters relevant to objective gravity, the offender’s subjective circumstances and other aspects which bear upon the question of sentence including the applicable maximum penalty.

The material tendered on sentence

4. The Crown material tendered on sentence (exhibit A) included the Crown sentence bundle containing the indictment, Crown proposed facts on sentence and a victim impact statement dated 2 May 2019. The Crown material also included written submissions on sentence dated 3 May 2019 and further written submissions on fact finding and the timing of counts 3-7 (exhibits C and D).

5. The defence material tendered on sentence (exhibit 1) included the statement of the offender dated 14 May 2019, a report of Dr Peter Michael dated 2 May 2019 and the defence written submissions on sentence and supplementary submissions (exhibit 4). There was no oral evidence called on sentence, although the defence relied on the unchallenged good character evidence called at the trial.

6. I have given careful consideration to the oral and written submissions for the Crown and the offender.

The determination of the factual basis for sentence

7. The sentencing judge is required to determine the factual basis of sentence in a manner that is consistent with the verdicts of the jury. A sentencing judge may not take facts into account that are adverse to the interests of the offender unless the facts have been proved beyond reasonable doubt. Any facts or circumstances which the sentencing judge proposes to take into account in favour of the offender need only be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [13]-[14], [49], [167]-[172].

Background facts

8. The complainant was born in 1967. He was the eldest of six children. His father died in 1971 when the complainant was four years old. His mother remarried CD in 1974.

9. The offender had been a student of both the complainant’s father and CD.

10. After leaving school, the offender became friendly with CD. He attended the wedding of CD and the complainant’s mother and developed a close friendship with the family.

11. The offender described his relationship with the complainant when the complainant was in his early years of high school as being fairly close; almost like a father-son relationship.

12. The offender encouraged the complainant to join a choir. The complainant was 11 or 12 years of age at the time. The offender would pick him up from his house and drive him to the choir.

13. The complainant would go away on weekend trips with the offender with a group for underprivileged children. The offender was a team leader of the group. The complainant and the offender travelled overseas together on a number of occasions. The first trip was from 13 December 1980 to 1 February 1981.

14. The offender regularly took the complainant sailing on Sydney harbour on a boat called “Tarsus II”.

15. The complainant said that the offender became a father figure for him. He said that the offender often spoke of the complainant’s father.

The evidence of other conduct

16. At the trial the Crown led tendency evidence to show that the offender had a sexual interest in the complainant and was willing to act upon it in the manner alleged. The evidence of other acts included occasions when the offender took the complainant away, including on overseas trips, and shared a bed with him. On some occasions the offender was naked. On occasions when the complainant stayed at the offender’s residence, they shared a bed and the complainant was instructed to sleep naked. The offender would also sleep naked. There were also occasions described as the “Saturday morning massage ritual” when the offender caressed the complainant’s body.

17. It is a fundamental principle that an offender cannot be punished for an offence of which he has not been convicted: R v De Simoni (1981) 147 CLR 383 at 389; R v D [1996] 1 Qd R 363. The fact that there is evidence of other conduct that revealed the offender’s sexual interest in the complainant cannot aggravate the offences: R v JCW (2000) 112 A Crim R 466.

18. The offender is not to be sentenced or punished for any conduct other than that which is the subject of the offences in respect of which he has been convicted.

Maximum penalty

19. The maximum penalty provided by s 81 Crimes Act 1900 for indecent assault on a male person is penal servitude for five years. The offences were capable of being dealt with summarily, in which case the maximum penalty is penal servitude for two years or a fine of $2000.00. However, the combination of features in this case mean that summary disposition would not have been appropriate. The maximum penalty can invite comparison between a hypothetical “worst case” and the case before the court, and taken with all other relevant factors provides a yardstick: Markarian v R (2005) 228 CLR 372; [2005] HCA 25 at [30]-[31].

The application of s 25AA Crimes (Sentencing Procedure) Act 1999

20. On 31 August 2018, s 25AA was inserted by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No 33.

21. Section 25AA provides that:

“25AA   Sentencing for child sexual offences

(1)   A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

(2)   However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.

(3)   When sentencing an offender for a child sexual offence, a 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).

(4) This section does not affect section 19. [1]

1. Section 19 of the Crimes (Sentencing Procedure) Act 1999 states that (1) if an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty, (2) if an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement (3) in this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty.

22. “Child sexual offence” is defined in s 25AA(5) to include offences listed in Column 1 of Schedule 1A Crimes Act 1900, regardless of when the offence occurred, but only if the person against whom the offence was committed was then under the age of 16 years. The offence of indecent assault on a male in s 81 is listed in the Schedule.

23. Prior to the enactment of s 25AA courts were required to take into account the sentencing practice at the date of the commission of an offence in cases where sentencing practice had moved adversely to an offender: R v MJR (2002) 54 NSWLR 368 at [31].

24. Counsel for the offender submitted that s 25AA did not apply because the provision commenced operation after the present proceeding against the offender began by the issuing of a court attendance notice on 31 October 2017.

25. Alternatively, it was submitted by counsel for the offender that if s 25AA does have operation, then it can only apply for counts 1 and 2 because the complainant was under 16 at the time of those offences. It was submitted that the evidence does not establish beyond reasonable doubt that the complainant was under the age of 16 at the time of counts 3-7.

26. It is clear that s 25AA was intended to have retrospective operation because it applies to courts sentencing for historical offences and requires that sentences be imposed in accordance with sentencing patterns and practices at the time of sentence rather than at the time of the offence. Nevertheless, it is necessary to consider the extent of retrospective operation: Lodhi v R (2006) 65 NSWLR 573 at [23]-[25]. As I have said, counsel for the offender submitted that s 25AA does not apply because proceedings against the offender had commenced before the date of commencement of the provision on 31 August 2018.

27. A similar argument was rejected by Hatzistergos DCJ in R v Nicholson [2018] NSWDC 347. However the argument in that case did not expressly refer to the decision of the New South Wales Court of Criminal Appeal in Lodhi v R and the specific presumption against retrospectivity for extant proceedings.

28. In Lodhi v R, the Court of Criminal Appeal considered the issue of retrospectivity in the context of terrorist offences where, after the applicant had pleaded to the indictment, the applicable provisions of the Commonwealth Criminal Code were repealed and replaced.

29. It was common ground that the applicant joined issue by pleading to the indictment prior to the new provision coming into effect: Lodhi v R at [22]. As was pointed out by Spigelman CJ, the principle of legality supports the reasoning that a statute that may have retrospective operation with the effect of criminalising past acts, will not be applicable to criminal proceedings that have already been commenced, unless that is the clear legislative intent: Lodhi v R at [35].

30. Spigelman CJ concluded that “… Parliament is ‘prima facie expected to respect’ the principle that a statute will not retrospectively alter a criminal offence where a trial has commenced”: Lodhi v R at [49].

31. The present case is significantly different to the circumstances in Lodhi v R.

32. As was pointed out in Lodhi v R at [25], it is necessary to have regard to the words of the statute construed in their context and in accordance with the scope and purpose of the provision. The purpose of s 25AA is to ensure that sentences meet current community expectations, within the constraints of the maximum penalty at the time of the offences. With these considerations in mind it is my view that s 25AA applies in all cases of sentencing for child sexual offences after 31 August 2018 whether or not proceedings were in progress at that date. It was accepted that the complainant was under the age of 16 at the time of counts 1 and 2, so s 25AA applies to those offences.

33. The significance of s 25AA is that it is not appropriate to try to ascertain the sentence that would have been imposed had the offender been sentenced at the time that the offences were committed. Further, it is not appropriate to have regard to the fact that there existed a practice whereby non-parole periods were commonly fixed between one-third and one half of the total sentence.

34. Another important aspect of s 25AA is the requirement to have regard to the trauma of sexual abuse on children as understood at the time of sentencing.

35. Nevertheless, in applying s 25AA it is necessary to be mindful of the maximum penalty applicable to the offences at the time they were committed.

The age of the complainant at the time of counts 3-7

36. The offences in counts 3-7 occurred during the course of a sailing trip to Pittwater. The charges were expressed in identical terms: that between 1 February 1981 and 31 December 1983, at Sydney in the state of New South Wales, the offender indecently did assault the complainant, a male.

37. The complainant was born in 1967 and turned 16 on xx July 1983. Therefore, if counts 3-7 occurred between 17 July 1983 and 31 December 1983, s 25AA would not apply to those offences.

38. The complainant’s evidence in relation to when the sailing trip to Pittwater occurred contained a number of inconsistencies. In evidence-in-chief he was asked if he recalled coming back from Europe in about 1983 when he was 13 or 14 and answered “Europe the second time”. The second trip to Europe was from 8 December 1982 to 30 January 1983. As I have just mentioned, the complainant turned 16 on xx July 1983. He also said that the trip occurred in the Easter school holidays, without specifying a particular year, although he did say the family was living in eastern Sydney at the time. In his police statement dated 12 December 2014 the complainant said the trip to Pittwater was during the Easter school holidays in 1983. In a statement dated 18 March 2015 he said that it was during the Easter school holidays in 1982. In cross-examination he accepted that the trip may have been in January, and not at Easter, although a little later he insisted that it was at Easter time. There was also conflict in the complainant’s evidence in relation to whether the family was living in eastern Sydney or southern Sydney at the time of the Pittwater trip.

39. The age of the complainant, the passage of time, and the traumatic nature of the offences, are factors that could explain his uncertainty as to the time of the Pittwater trip. The complainant agreed that his recollection of exact dates was “a bit hazy.” However there is other evidence, including that given by the offender that assists in determining the time of the trip. It is not surprising that the complainant’s mother and stepfather, and the offender, would have a better recollection of approximate dates.

40. At the trial it was an agreed fact that the complainant’s mother and her husband settled the purchase of a property in southern Sydney on 12 October 1982. Prior to that, the family resided in eastern Sydney.

41. The complainant’s mother recalled that there was an arrangement that the offender would let her know when they had arrived in Pittwater. When that did not happen the police were contacted. This seems to have been a memorable fact. She said that the family was living in eastern Sydney at the time which therefore meant that the trip was prior to October 1982. Her husband also gave evidence that the trip to Pittwater happened when the family was living in eastern Sydney, and agreed that it was logical that the trip could have occurred in January, rather than at Easter.

42. The evidence given by the offender at the trial was that the Pittwater trip was at about New Year 1982. The offender’s counsel submitted that “While the Crown might call in aid the evidence of the offender about when the sailing trip occurred, the offender’s evidence was clearly rejected by the jury by their verdicts.”

43. It is true that the offender’s evidence in relation to the offences was clearly disbelieved by the jury. However that does not mean that his evidence is to be entirely disregarded. It is worth noting that evidence called in the defence case provided a rational basis for the acquittals on counts 8 and 9, possibly arising from the timing of those offences.

44. There is no reason to doubt the offender’s evidence in relation to the timing of the Pittwater trip, particularly in view of the fact that his evidence in that respect is consistent with the evidence of other witnesses.

45. The offender said that the Pittwater trip was definitely during summer, as opposed to Easter. He also said that the complainant and his brother only went sailing for a short period of time after the family moved to southern Sydney. There was a specific reason why the offender did not continue sailing on Saturday mornings, which related to one of the owners of the boat, James Curtis, wanting to commence at 9 am. That did not suit the offender and so he withdrew from the crew.

46. The offender’s second trip overseas with the complainant was from 8 December 1982 to 3 January 1983. By that stage, the family was living in southern Sydney. Therefore, the Pittwater trip could not have occurred in January 1983.

47. There is cogent evidence, which I accept, from the complainant’s mother and stepfather, and the offender, that the Pittwater trip was in 1982. Based on that evidence I am satisfied beyond reasonable doubt that the Pittwater trip, and therefore, the offences in counts 3-7 occurred in 1982 before the family moved to southern Sydney in October. The complainant would have been aged 14 years 5 months in January 1982 and by the time the family moved from the eastern Sydney residence in October he would have been about 15 years 3 months.

36. I am satisfied beyond reasonable doubt that the complainant was under the age of 16 at the time of counts 3-7 and therefore s 25AA also applies to those offences.

The relevant facts

49. Count 1 occurred at the offender’s residence at Balmain between 1 February 1981 and 1 March 1983. The complainant was about 14 years of age. This offence was an instance of what was described as a “Saturday morning massage ritual”, although on this particular occasion it was interrupted by the arrival of the offender’s builder.

50. The complainant stayed overnight at the offender’s residence. He slept in the offender’s bed. He was naked. The Saturday morning massage ritual ordinarily involved the offender moving from the bed to the bedroom door, wearing a white night dress, and then locking the door. He would then walk back to the bed and remove the night dress. He would then get on the bed at the bottom of the bed. The offender would then place one knee on either side of the complainant’s ankles and pull the bed sheets down, exposing the complainant lying naked. The offender would then straddle the complainant’s legs and begin a massage which was described by the complainant as a “very gentle touching of the fingers on the skin”. The offender would tell the complainant to relax and the massage would progress up the legs to the groin area. The massage continued up the complainant’s body, over his upper body, to his face. He would then close the complainant’s eyes and continue the massage down the rest of his body lingering on the complainant’s penis area. On the occasion the subject of count 1 the massage ritual was interrupted by the arrival of the offender’s builder calling out. The complainant’s evidence was that they were “some way into the ritual massage” when there was a knock at the door and the offender told him to get dressed and go downstairs. When asked what stage the massage ritual had reached the complainant said “it was early on in it”. The verdict of the jury means that the ritual had progressed to an actual touching of the complainant’s body, although it is not clear exactly how far it had reached.

51. Count 2 occurred at the offender’s residence at Balmain between 1 February 1981 and 31 December 1981. The complainant had attended a dance at the Catholic Club in Randwick. At the dance, the complainant was kissed by a girl for the first time and she gave him a hickey on the neck. After the dance the offender picked the complainant up as they were going sailing the following day. In the morning the offender noticed the hickey on the complainant’s neck and became aroused. The complainant described the offender mauling him and kissing him with partially open, wet lips. The offender asked the complainant about his experience with the girl he had kissed the night before.

52. Counts 3-7 occurred during the course of the sailing trip to Pittwater. Although the time period charged in the indictment is between 1 February 1981 and 31 December 1983, as I have indicated, I am satisfied beyond reasonable doubt that the offending occurred in 1982 prior to when the family moved from eastern Sydney to southern Sydney in October.

53. The offender borrowed the “Tarsus II” from his friend James Curtis. Only the offender and the complainant went on the trip. They sailed from Middle Harbour Yacht Club heading north to Pittwater. When they were off the coast of Palm Beach they noticed a shark. The complainant said that when they got to Barrenjoey or the headland at Pittwater, the offender went to the marina to try to call the complainant’s mother to advise that they had arrived safely. The offender was unable to get through to the complainant’s mother and they sailed upstream to find somewhere to moor for the night.

54. After mooring the boat they had dinner and the complainant said that the offender consumed some wine. The complainant said he believed he had some wine as well.

55. Count 3 involved the offender telling the complainant to stand in front of him. The complainant said that the boat was rocking so he had to hold onto the top of the cabin. The offender was sitting on the bench seat and pulled the complainant’s pants down. The offender took the complainant’s penis in one of his hands and placed it in his mouth. The complainant’s entire penis was in the offender’s mouth. The offender fiddled with the complainant’s penis and bounced his penis up and down inside his mouth. The complainant pushed the offender away and started to cry.

56. The complainant was trying to get away from the offender. The complainant was crying and the offender had his arms all over him. The complainant described the offender as embracing him and holding him on the bench seat. The complainant said that the offender was not continuing his sexual advances but was still trying to hold him close. The complainant was still crying. Count 4 was described by the complainant as involving the offender kissing him “in sort of a consolation kiss”. The offender was saying that it was okay and telling him not to cry.

57. The following day the offender and the complainant were on the boat when a police launch found them and enquired as to their safety. That night the boat was moored just offshore.

58. The offender and the complainant went ashore to the beach where they had a camp fire. The offender instructed the complainant to be naked. The offender was also naked. The offender asked the complainant to sit beside him with his legs spread open. The offender did the same.

59. Count 5 involved the offender putting his hand on the complainant’s penis and masturbating him.

60. Count 6 involved the offender putting the complainant’s hand on his own erect penis.

61. The complainant jumped up onto his hands and knees and tried to make light of the situation by pretending to be a dog and running away. Count 7 involved the offender grabbing the complainant, tackling him to the ground and rubbing his erect penis against the complainant.

The evidence of complaints

62. The complainant disclosed the offending to his mother, stepfather, his partner and others.

63. His first disclosure was made some time after returning from the boat trip to Pittwater.

64. He made disclosures to school friends, and others.

65. In the middle of 1993, the complainant became distressed, which led to him being taken by the offender to the psychiatric unit at Sutherland Hospital. After that, the offender’s brother, a general practitioner, referred him to Dr Greg Cook, a psychiatrist. The complainant first saw Dr Cook on 17 June 1993 and disclosed to him that he had been sexually molested by the offender when he was about 12 to 14 years of age.

The evidence of admissions

66. After having no contact with the offender for approximately 17 years, in December 2010 the complainant left a message for him at the Downing Centre, where the offender was working as a magistrate. This led to a meeting where the offender apologised for his conduct.

67. In January 2011, the complainant provided the offender with a list of expenses that he had incurred and money he needed in order to move to north-eastern New South Wales to be near his children. The offender ultimately agreed to assist the complainant by paying a debt of $7500.00 and provided $3000.00 to enable him to buy a vehicle. The offender arranged a travel card for the complainant, into which regular payments were made. Over the period from 21 July 2011 to 9 August 2013 the offender made 58 deposits ranging from $200.00 to $1400.00, totalling $33,762.85.

68. All contact between the offender and the complainant ceased in October 2013 after an exchange of emails in which the complainant made demands. The offender denied any wrongdoing and indicated that he had appointed solicitors.

Assessing the objective gravity of the offences

69. An essential aspect of the sentencing process involves a consideration of the objective gravity of each offence. The factors relevant to the assessment of objective seriousness include:

• The nature of the indecent assault including the type of act involved and the circumstances in which the indecent assault was committed;

• The age of the complainant;

• The age of the offender;

• The nature of the relationship between the complainant and the offender;

• The number of occasions of offending;

• The duration of each offence.

70. The complainant was aged about 14 at the time of count 1. He was aged 13 or 14 at the time of count 2. The complainant’s age at the time of counts 3-7 was between 14 years 5 months and 15 years 3 months.

71. The offender was aged between about 30 and 32 at the time of the offences. There was clearly a significant age disparity.

72. The offender was a trusted family friend. The complainant’s mother trusted the offender to look after the complainant on overnight stays. The complainant and offender described their relationship as being a father-son type relationship. The offending therefore involved a very grave breach of trust.

73. The offender exploited the complainant’s vulnerability for his own sexual gratification. On each occasion the offender had responsibility for the care and supervision of the complainant, and so the offending involved a very serious breach of trust.

74. There are varying degrees of seriousness in respect of the type of indecent acts involved in the offending. Count 1 involved the massage ritual that was interrupted by the arrival of the builder. It is not entirely clear at what stage the massage ritual was interrupted. In any event the complainant was naked on the offender’s bed and there must have been some touching. Having regard to the complainant’s evidence of this specific occasion, I am not satisfied beyond reasonable doubt that there was touching of the genitalia.

75. Count 2 involved the offender kissing the complainant with partially open, wet lips.

76. The most serious act is count 3 which involved the offender placing the complainant’s penis in his mouth. The complainant was crying.

77. Count 4 occurred immediately after count 3 and involved the offender kissing the complainant.

78. Count 5 involved the offender masturbating the complainant’s penis. Count 6 involved the offender placing the complainant’s hand on his own erect penis. Count 7 involved the offender rubbing his erect penis against the complainant’s right outer thigh and groping him.

79. The precise duration of each offence was not specified. Based on the evidence of the complainant some offences occurred over a longer period than others. In any event, the effect of the offending upon a child does not depend upon the length of time of the abuse: Mayall v R [2010] NSWCCA 37 at [44]. Sexual offending committed against children often occurs over a short period of time and concentrating on the duration of such offending has the capacity to minimise, if not completely ignore, the profound and deleterious effects such offending typically causes.

Acquiescence

80. Counsel for the offender submitted that the complainant appeared to acquiesce to the acts. Counsel accepted that this may be due to the power imbalance, but submitted the offences are less serious than those where there is forcible conduct or resistance. However, the complainant did push the offender on the shoulders and started crying during the commission of count 3. After that, the offender kissed the complainant, which is the offence in count 4. Moreover, the offences the subject of counts 5, 6 and 7 occurred the next night.

81. To the extent that the complainant’s acquiescence is relevant to the objective gravity of the offences, the evidence of grooming by the offender cannot be ignored. It is not necessary to refer to every aspect of the evidence. However, there is evidence, for example, that after the first trip to Europe the offender told the complainant that “it was a good thing to be uninhibited about being naked with him in his bedroom and in his bed.” The offender was in a position of authority, so any acquiescence by the complainant was undoubtedly due to the power imbalance. The offending in counts 1 and 2 occurred at the offender’s home. The other offences occurred when the complainant was alone with the offender on the boat trip to Pittwater. In any event, sexual activity between an adult and a child can be damaging for the child even where there is a consensual relationship.

The harm done to the complainant

82. One of the purposes of sentencing is to recognise the harm done to the victim. The courts and the community are now far more aware of the long-term consequences of sexual abuse upon children which is one of the reasons why such offences are treated seriously.

83. The complainant read out his victim impact statement pursuant to s 30A Crimes (Sentencing Procedure) Act 1999. The victim impact statement details the significant impacts that the offences have had upon him throughout his life. The complainant describes the impact of the abuse as profound. The complainant attributes his substance abuse problems, depression and inability to talk freely about his childhood and early adulthood, to the sexual abuse. He said that the abuse stopped him from living a “normal, productive, successful life.” The complainant also referred to the inter-generational effects of the abuse he suffered and how it has impacted upon his children. The complainant continues to suffer from intrusive memories, thoughts and flashbacks which cause him to feel shame, guilt and embarrassment. The complainant says that as a young boy who had lost his father, he was extremely vulnerable. The offender was taught by the complainant’s father. The complainant believes that the offender used his knowledge of the complainant’s father in order to manipulate him. The complainant has had difficulty recounting the impacts of the sexual abuse to family members, past girlfriends and the court. He has suffered financial and psychological stress and a chronic sense of helplessness.

84. Without in any way minimising the significant harm to the complainant, the nature of the emotional harm is not sufficient to constitute a separate aggravating factor pursuant to s 21A(2)(g).

The offender’s subjective case

85. The offender is now 69 years of age. He was about 31 to 32 years of age at the time of the offending.

86. The offender has not previously been arrested or charged with an offence and he has no previous convictions. Generally a lack of prior convictions entitles an offender to leniency to which the offender would not otherwise be entitled.

87. At the trial the offender adduced significant good character evidence from people who had known him for many years and attested to his good character and honesty. There was evidence from former colleagues, neighbours and friends that he is a person who is honest, generous and has the highest integrity. There was also evidence from two men, who as adolescents, were involved with the offender at a social service for underprivileged children, and went on various outings and trips away with him.

88. The Crown abandoned a submission that the offender’s prior good character and lack of previous convictions could not be taken into account as a mitigating factor by reason of s 21A(5A) Crimes (Sentencing Procedure) Act 1999, which provides that in sentencing for child sexual offences, good character and lack of previous convictions are not to be taken into account if those factors were of assistance to the offender in the commission of the offences: AH v R [2015] NSWCCA 51.

89. The offender’s background is detailed in his statement dated 14 May 2019, which is contained in exhibit 1.

90. The offender is the eldest of two sons and grew up in Bellevue Hill.

91. The offender completed his Higher School Certificate in 1968.

92. The offender then commenced university at Sydney University in 1969 where he studied Arts and Law. He graduated with his Arts Degree in 1972 and then studied Law full time. He completed his university studies in 1974.

93. The offender commenced articles of clerkship with a firm of solicitors at the beginning of 1973. He was admitted as a solicitor on 14 March 1975.

94. The offender’s first job was at Geoffrey Edwards and Co where he was initially employed as an articled clerk. The offender became an associate at the firm in 1977 and an equity partner in July 1980. He remained at the firm until October 1987. The offender specialised in industrial law and personal injuries law.

95. The offender then worked briefly as a consultant at GH Healey from October 1987 until October 1988.

96. On 28 October 1988 the offender was admitted as a barrister of the Supreme Court of New South Wales. He practised in chambers at Fourth Floor Wentworth Chambers where he remained until September 2002.

97. The offender was appointed as a magistrate of the Local Court of New South Wales on 13 September 2002. He worked on a fly-in, fly-out country circuit for three and a half years and then worked at Burwood, Penrith and Mount Druitt. In 2007 he commenced at the Downing Centre in Sydney.

98. Upon being charged with the present offences in October 2017 the offender was suspended. He remains suspended at the present time.

99. The offender has a number of medical conditions including type 2 diabetes mellitus, hypertension, hyperlipidaemia, anxiety/ stress, and reflux. He takes a variety of medication for those conditions.

Prospects of rehabilitation

100. The relevant mitigating factors in s 21A(3) are:

• the fact that the offender does not have any record of previous convictions (s 21A(3)(e));

• the fact that the offender was a person of good character (s 21A(3)(f));

• the offender is unlikely to re-offend (s 21A(3)(g)); and

• the offender has good prospects of rehabilitation by reason of his age and otherwise (s 21A(3)(h)).

The effect of delay and rehabilitation

101. The offences occurred in the early 1980s. The complainant initially made a complaint to the police in 2004 but that was discontinued. A subsequent complaint was made in 2013 and the offender was charged on 31 October 2017. The effect of delay between the commission of an offence and the imposition of sentence can be relevant where there is demonstrated rehabilitation in the intervening period: R v Todd [1982] 2 NSWLR 517 at 519; Mill v R (1988) 166 CLR 59 at 64.

102. In the period of approximately 37 to 38 years since the commission of the offences, the offender has demonstrated that he has been rehabilitated.

103. Another aspect of delay as a mitigating factor arises in cases where an offender has been left in a state of uncertainty by reason of a failure to prosecute promptly. As I have mentioned, the offender was charged on 31 October 2017. However, the complainant had threatened to go to the police in the emails sent in October 2013. It is possible that the offender felt a degree of apprehension as a result of those exchanges. He was found guilty of counts 1-7 on 5 April 2019. The offender’s counsel submitted that the offender had been left in a state of uncertain suspense, but there is no suggestion that he suffered any particular detriment apart from being suspended from his duties as a magistrate.

104. The offender faces a term of imprisonment at the age of 69, which undoubtedly will be more onerous than if he was younger. Balanced against that, is the fact that as a result of the delay, the offender enjoyed the prime years of his life in the community.

105. It should not be overlooked that it is not as though the allegations suddenly surfaced out of the blue after many decades. The offender was confronted with the allegations on a number of occasions over the years. His response was to downplay the allegations or minimise his conduct and, by doing so, he played a role in the delay.

106. The complainant said that after the boat trip to Pittwater, he made a disclosure to his stepfather in the offender’s presence. He said that the offender rebuked him and told him to go to bed. The complainant’s stepfather denied that there was any such disclosure at that time. However, he recalled that in 1985, the complainant told him that something had happened on the boat. He spoke to the offender about the matter; the offender said he had seen the complainant naked on the boat and felt ashamed.

101. The complainant’s mother gave evidence of a conversation which she said occurred in the kitchen at the southern Sydney residence when the complainant said, in the presence of the offender, “You don’t know what he’s been doing.” The offender replied, “It’s all right. I’ve told them everything.”

102. The offender’s evidence was that in 1986, when the complainant was 18 or 19, the complainant’s mother asked him whether he had been touching the complainant inappropriately. The offender’s own evidence of this conversation was: “I said that there was an occasion when he was staying at Balmain and I had inadvertently barged into the bedroom he was in at the time and he didn’t have any clothes on and he had an erection. And I felt embarrassed, he felt really embarrassed as well, and he was a bit discommoded by all of that.”

103. The offender said that he told the complainant’s mother about the incident and that he felt ashamed. When asked to explain why that was so, he said: “Because I’d perhaps stayed and looked too long. I just thought it was something that shouldn’t have happened.”

104. In about August or September 1992 the complainant’s sister telephoned the offender asking why he had abused her brother. After initially saying he didn’t know what she was talking about, the offender said “It wasn’t that bad. It wasn’t like that.” When asked how old her brother was at the time, the offender said that he was in his mid to late teens. Although the complainant’s sister suffered severe mental illness, including delusions, at about the time of the conversation, her evidence is consistent with other evidence clearly accepted by the jury. Moreover, the offender’s version of the conversation, put to the complainant’s sister in cross-examination, was not significantly different. There was no dispute that there was a conversation, although it was suggested that it occurred in October 1992, rather than August or September. It was suggested by the offender’s counsel that the offender had said “it wasn’t anything that bad. I don’t know why you’re worrying about it.”

105. In the 1990s, after the complainant made a more detailed disclosure to his mother and stepfather about being sexually abused on the boat, the stepfather told the offender that they couldn’t see him anymore because of what he had done.

106. The offender’s account of the conversation was somewhat different, but even on his version, the subject matter related to the complainant. According to the offender, the stepfather had been given an ultimatum by his wife that he move out or cease contact with the offender.

107. A short time after that, it seems perhaps in April 1994, the offender, the complainant’s mother and stepfather, happened to be at the birthday party of a mutual friend. It is common ground that the offender left the party. On the offender’s version, the complainant’s mother said “Either he goes or we go.” The offender then left the party. The offender assumed that the breakdown in the relationship had something to do with the complainant.

108. There was no contact between the offender and the complainant and his family for many years. In about December 2010, the complainant made contact with the offender, and they subsequently met up. After a few drinks at a hotel in Randwick, the offender drove the complainant home. When they arrived, the complainant asked why the offender “did those things.” After initially saying he didn’t do anything, the offender broke down crying and said he was sorry.

109. As I have said, whilst there has been delay, this is not a case where the offender has been entirely oblivious to the fact of allegations in the intervening period.

Loss of career as extra-curial punishment

116. Counsel for the offender submitted that the convictions would undoubtedly lead to the termination of the offender’s employment as a magistrate at a time when he still had some years to serve and where his entire life has been spent as a lawyer. He submitted that it would be difficult for the offender to find any other alternative way of life.

117. The loss of employment would almost inevitably follow for many offenders convicted of sexual offences: Greenwood v R [2014] NSWCCA 64 at [35]. Having said that, the offender will not only lose his position as a magistrate, he would be unable to resume practising law. That will undoubtedly have financial and other implications. On the other hand, having been admitted as a solicitor of the Supreme Court of New South Wales on 14 March 1975, the offender would have been in a position to know the ramifications of his offending in the early 1980s.

118. While I consider that that loss of the offender’s career is a relevant factor, it cannot overwhelm other considerations, such as the need to ensure that the offender is adequately punished; to deter others from committing similar offences; to ensure that the offender is held to be accountable for his conduct; denunciation; and the recognition of the harm done to the complainant.

Hardship in custody

119. Counsel for the offender submitted that because of the offender’s role as a judicial officer and the nature of the offences, he would be required to serve his sentence of imprisonment in protective custody. He submitted that it was inevitable that the offender would be kept in restrictive conditions with very limited ability to associate with other offenders and little, if any, scope for an improvement in his custodial conditions.

120. The Crown accepted that the offender will be placed in protective custody and is likely to suffer hardship because of his previous employment as a judicial officer. It was accepted that this is a factor that could be taken into account in mitigation of the sentence or in relation to the variation of the statutory non-parole period. In the circumstances of this case the Crown submitted that the offender’s hardship in custody should be taken into account in determining the head sentence. On the other hand, counsel for the offender submitted that the likely onerous conditions of custody should be taken into account in deciding whether there are special circumstances justifying a variation in the statutory non-parole period.

Comparable cases

121. Counsel for the Crown and counsel for the offender cited a number of comparable sentences. Comparable sentences assist in promoting consistency in the application of sentencing principles as they provide guidance and stand “as a yardstick against which to examine a proposed sentence”: Hili v R (2010) 242 CLR 520 at [53]-[54]; [2010] HCA 45. A sentence imposed in a particular case does not establish a binding precedent except to the extent that it involves a statement about the applicable principles in the exercise of the sentencing discretion: Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [57].

122. Counsel could not locate a significant number of comparable sentences; perhaps that was because the offence in s 81 Crimes Act 1900 was abolished on 7 June 1984.

123. In considering the comparable sentences it is necessary to bear in mind that the maximum penalty for the present offences against s 81 Crimes Act 1900 is penal servitude for 5 years. Some of the comparable cases involve offences carrying significantly higher maximum penalties. Further, all comparable cases cited by counsel were decided before the commencement of s 25AA on 31 August 2018, which requires a court to sentence an offender for child sexual offences in accordance with sentencing patterns and practices at the time of sentencing.

124. The Crown referred to Stanton v R [2017] NSWCCA 250, Morgan v R [2017] NSWCCA 269 and Wade v R [2018] NSWCCA 85.

125. Counsel for the offender referred to Flaherty v R; R v Flaherty [2016] NSWCCA 188 and also relied on Wade v R, which was referred to by the Crown.

126. The decision of the Court of Criminal Appeal in Flaherty relied upon by the offender was an unusual case. The offender was sentenced for five counts contrary to s 81 involving three complainants. The offences occurred between 1972 and 1981. The offender pleaded guilty to three offences. He went to trial in respect of two counts and was convicted. The offender was a catholic priest. The offences in respect of which he went to trial involved a boy aged between 11 and 13. The offences relating to that boy occurred at the offender’s holiday house in a South Coast town to which he had invited the boy and others. The offences occurred on the same evening and related to the offender performing fellatio upon the complainant and then inserting an object into his anus. The offender pleaded guilty to an offence relating to masturbating a 15 year old boy on one occasion and touching his penis outside his clothing on a second occasion. The offending against the third complainant, a 14 year old boy involved rubbing his penis. The offender was 72 years of age at the time of sentence and his physical and mental health were described as being parlous. He suffered from dementia and a cardiologist expressed the opinion that he was at certain risk of suicide or sudden death if imprisoned. He had a limited life expectancy. The initial sentence was an aggregate sentence of imprisonment for two years and three weeks with a non-parole period of six months. An unusual feature of the case is that although the Crown established that the sentencing judge erroneously engaged in a two-stage approach, the sentence was reduced to an aggregate term of imprisonment for two years with a non-parole period of three months. It was recognised at [94] that a reduction in sentence after upholding a ground of appeal advanced by the Crown was unusual. Further, it was said at [114] that the sentence imposed by the Court of Criminal Appeal was very considerably less than the objective circumstances warranted. The sentence imposed took into account the offender’s extreme medical condition. Having regard to those considerations, the decision in Flaherty provides no useful guidance.

127. In Morgan v R the offender was found guilty, after trial of an offence of indecent assault upon a male, sexual intercourse without consent with a child under 16 years, and commit an act of indecency towards a person under 16 years. The offender was an acolyte at the local church and assisted the parish priest. The complainant was an altar boy aged between 11 and 13. Between 1982 and 1984 the complainant visited the offender at his rural property. On one occasion the offender touched the complainant’s buttocks and penis on the outside of his clothing. On a separate occasion the offender gave the complainant alcohol and rubbed the sides of his legs, buttocks and penis before putting the complainant’s erect penis into his mouth. The offender also masturbated in front of the complainant until he ejaculated. The offender was 40 years of age at the time of the offences and aged 77 years at the time of sentence. The offender was sentenced to an aggregate term of imprisonment of three years with a non-parole period of 18 months. The Court of Criminal Appeal dismissed the offender’s application for leave to appeal against sentence. In considering this case it is necessary to bear in mind that the offender’s conduct in putting the complainant’s erect penis into his mouth was charged as an offence of sexual intercourse without consent upon a person under 16 years, contrary to s 61D Crimes Act 1900 which carried a maximum penalty of penal servitude for 10 years.

128. In Wade v R the offender was the headmaster of a Marist Brother’s school. He was found guilty following a trial of three counts contrary to s 81. One complainant was a boy aged 13 or 14. When he felt ill he went to the school office and was told to go to the offender’s office. The offender sat the complainant on his knee and fondled his penis inside his pants. The other complainant was a boy aged about 13. He suffered a twisted testicle and was experiencing severe pain. He went to the school office and told the secretary he needed the principal’s permission for his mother to be called to take him home. When he went into the offender’s office and explained the problem he was asked to pull his pants down so the offender could see it. The offender knelt in front of the boy and started playing with his penis and testicles and then put the boy’s penis in his mouth. This occurred for a period of about 30 seconds. The offender was 81 years of age at the time of sentence. He was between 40 and 44 at the time of the offences. The total effective sentence was 18 months imprisonment with a non-parole period of 9 months. The Court of Criminal Appeal held that the sentence was not manifestly excessive.

129. The Crown’s written submissions referred to Stanton v R [2017] NSWCCA 250. The case does not seem to have been relied on as a comparable case. It was plainly much more serious than the present case; the aggregate sentence was 23 years imprisonment with a non-parole period of 13 years, 9 months. The Crown drew attention to the statement in the judgment that the onus rested upon the applicant to establish on the balance of probabilities that his risk of re-offending was low: at [92]. Further, the Court of Criminal Appeal held that it was open to the sentencing judge to find that he was not satisfied on the balance of probabilities of the extent of the applicant’s remorse: at [106]. The decision in Stanton v R has no particular relevance.

130. In the present case, I am satisfied on the balance of probabilities that the offender is unlikely to re-offend and has good prospects of rehabilitation. Not surprisingly, there was no submission in this case that the offender is remorseful.

Totality

131. A court sentencing an offender for more than one offence must first determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence, bearing in mind the principle of totality.

132. I intend to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999.

133. Nevertheless I must fix, by way of indicating, an appropriate sentence for each of the offences and then, in accordance with Pearce v R (1998) 194 CLR 610, the overall criminality must be taken into account when considering whether those indicative sentences should be served concurrently or cumulatively upon one another, and if so, to what degree.

134. The principle of totality requires the court to impose a total sentence which, after the aggregation of the indicative sentences, is a just and appropriate measure of the total criminality involved. The question is whether the notional sentence for one offence can comprehend and reflect the criminality for another offence or offences.

135. All seven offences occurred during a time period in the early 1980s. Counts 1 and 2 occurred on separate occasions. Counts 3, 4, 5, 6 and 7 all occurred during the boat trip to Pittwater. However, counts 3 and 4 occurred on one day, with count 4 occurring immediately after count 3. Counts 5, 6 and 7 occurred on the following day and were essentially part of the one incident. The offending during what is essentially the one incident would call for a considerable degree of concurrency. The separation in time between counts 3 and 4, and counts 5, 6 and 7 would call for a slight degree of accumulation because all offences occurred during the one boat trip.

Section 5 Crimes (Sentencing Procedure) Act 1999

136. Section 5 of the Crimes (Sentencing Procedure) Act 1999 states that a court must not sentence an offender to imprisonment unless it is satisfied, having regard to all possible alternatives, that no penalty other than imprisonment is appropriate. Counsel for the offender accepted that having regard to the verdicts of the jury, “the threshold for imprisonment has been crossed.”

137. I consider that the threshold in s 5 is not satisfied in respect of count 2, which involved an incident of kissing for a short duration. The kissing which is the subject of count 4 is in a different category because it occurred after count 3, and after the complainant had pushed the offender away and he was crying.

138. I am satisfied that imprisonment is the only appropriate penalty for all counts, with the exception of count 2. In view of the sentences to be imposed for those offences, in respect of count 2, I order pursuant to s 10A Crimes (Sentencing Procedure) Act 1999, that the offender be convicted with no further penalty imposed.

Variation of the statutory non-parole period

139. When imposing an aggregate sentence of imprisonment in respect of two or more offences, the court may set one non-parole period for all offences to which the sentence relates after setting the term of the sentence: s 44(2A). The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served, must not exceed one third of the non-parole period, unless the court decides that there are special circumstances for it being more: s 44(2B).

140. Counsel for the offender submitted that past sentencing practices alone may justify a finding of special circumstances in order to reflect the applicable ratio between the non-parole period and head sentence at the time of the offences. It was also submitted that special circumstances could arise from a combination of factors, including that this will be the first time the offender is serving a sentence of imprisonment, his age and prior good character and the likely onerous conditions of imprisonment. It was also submitted that delay could constitute a special circumstance.

141. The Crown submitted that the court would not find that there are special circumstances which justify varying the statutory ratio. The Crown submitted that the fact that an offender is serving a period of incarceration for the first time is not of itself a basis for finding special circumstances: Purtill v R [2016] NSWCCA 80 at [46]; Collier v R [2012] NSWCCA 213 at [36].

142. It is necessary to avoid double counting of matters affecting the length of the head sentence and matters that might constitute special circumstances.

143. It is not necessary for the relevant circumstances to be exceptional or unusual in order to constitute special circumstances. In Baker v R (2004) 223 CLR 513 at 523; [2004] HCA 45 at [13], Gleeson CJ said:

“There is nothing unusual about legislation that requires courts to find “special reasons” or “special circumstances” as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.”

144. As I have previously said, the Crown accepted that the offender is likely to suffer hardship in custody because of his position as a magistrate. The Crown accepted that this could be taken into account in sentencing, either by way of mitigation in determining the head sentence or in a finding of special circumstances. However, in the circumstances of this particular case the Crown submitted that hardship should be taken into account in determining the head sentence.

145. The offender’s health condition is not life threatening and appears to be treatable in custody, so I would not consider that to be a matter either alone or in combination with other factors that would justify a finding of special circumstances.

146. The fact that this will be the offender’s first time in custody is not of itself a factor that could be regarded as a special circumstance.

147. It is difficult to see that the past sentencing practice of fixing a non-parole period of between one-third and one half of the term of the sentence could be a special circumstance in view of s 25AA, which requires the court to sentence an offender in accordance with current sentencing patterns and practices. While that has been a relevant consideration in finding special circumstances in previous cases, that would not be a relevant factor since the introduction of s 25AA on 31 August 2018.

144. The effect of delay has been regarded as a special circumstance: R v EGC [2005] NSWCCA 392 at [38].

145. I have concluded that the combination of delay and the hardship the offender will experience in custody are factors that constitute special circumstances justifying a variation in the statutory ratio.

Indicative sentences

150. The imposition of sentence is not a mathematical exercise. The appropriate sentence is arrived at by application of the relevant principles, having regard to the circumstances of the offences and the offender: Barbaro v R (2014) 253 CLR 58; [2014] HCA 2 at [34].

151. Having carefully considered all relevant factors, the sentences that I would have imposed if separate sentences were being imposed instead of an aggregate sentence are as follows:

Count 1, a term of imprisonment of 6 months.

Count 3, a term of imprisonment of 2 years.

Count 4, a term of imprisonment of 6 months.

Count 5, a term of imprisonment of 9 months.

Count 6, a term of imprisonment of 9 months.

Count 7, a term of imprisonment of 9 months.

Aggregate sentence

152. The offender is convicted of counts 1, 3, 4, 5, 6 and 7.

153. I impose an aggregate sentence of imprisonment of two years and four months to date from 23 August 2019 and to expire on 22 December 2021 with a non-parole period of 16 months to date from 23 August 2019 and to expire on 22 December 2020.

154. I am satisfied that the overall sentence is the least period which I consider the offender should serve and ensures proper consideration of the objectives of sentencing, the objective gravity of the offences and all matters personal to the offender.

155. I am satisfied that the aggregate non-parole period reflects the minimum period of imprisonment the offender be required to serve.

156. The combination of factors that I have referred to, justified the variation I have made to the otherwise applicable statutory ratio.

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Endnote

Decision last updated: 13 November 2019