R v Dawson

[2000] NSWCCA 399

CITATION:	R v DAWSON [2000] NSWCCA 399
FILE NUMBER(S):	CCA 60625/99
HEARING DATE(S):	9 October 2000
JUDGMENT DATE:	18 December 2000
PARTIES :	Regina Khan John Dawson
JUDGMENT OF:	Hulme J at 1; Barr J at 64

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/1068 97/11/1086 98/11/0173
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

COUNSEL :	Crown: RD Cogswell SC Appellant: P Byrne SC
SOLICITORS:	Crown: SE O'Connor Appellant: Alan B King
DECISION:	Leave to appeal against sentence allowed; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
No 60625 of 1999

HULME J
BARR J

Monday, 18 December 2000

REGINA -v- Khan DAWSON
JUDGMENT
1 HULME J: On 1 October 1999 the Applicant was sentenced by Judge Freeman in respect of a number of offences. In abbreviated form, they are set out in the following table. Also set out are the sections of the Crimes Act relevant and the maximum penalties prescribed for each offence under that section, and the penalties in fact imposed, together with an indication, where appropriate, of sentences made concurrent.

No	Offence	Section and max penalty	Sentence imposed
1	Between 15 August 1990 and 3 April 1992 having sexual intercourse with LO, then a child aged between 10 and 16, to wit, 14 or 15.	s66C - 8 yrs	2 years conc. With 2
2	Between 15 August 1990 and 3 April 1992 having sexual intercourse with LO, then a child aged between 10 and 16, to wit, 14 or 15.	s66C - 8 yrs	2 years conc. With 1
3-6	On 26 December 1992 having sexual intercourse without consent with SW, knowing she was not consenting.	s61I - 13 yrs	Taken into account in offence 12
7	Between 15 August 1990 and 3 April 1992 indecently assaulting LO in circumstances of aggravation namely that she was under 16 years, to wit 14 or 15 years.	s61M(b) - 7 yrs	Ditto
8	Between 3 January and 1 February 1996 indecently assaulting SM in circumstances of aggravation namely that she was under 16 years, to wit, 14 years old.	s61M(b) - 7 yrs	Ditto
9	Between 3 March 1996 and 1 June 1996 indecently assaulting SE in circumstances of aggravation namely that she was under 16 years, to wit, 15 years.	s61M9b) - 7 yrs	Ditto
10	Between 28 February and 1 December 1995 indecently assaulting TD.	s61L - 5 yrs	1.5 yrs conc. With 11
11	Between 28 February 1995 and 1 March 1996 indecently assaulting TD.	s61L - 5 yrs	1.5 yrs conc. With 10
12	On or about 27 or 28 March 1996 unlawfully administering to TD a stupefying drug viz benzodiazepine with intent to commit an indictable offence namely an indecent assault.	s38 - 25 yrs	4 yrs minimum 3 yrs additional
13	Between 1 and 31 January 1997 indecently assaulting RP in circumstances of aggravation, viz. that she was under 16 years, to wit, 14 or 15.	s61M - 7 yrs	1 year
14-22	Between December 1996 and March 1997 having sexual intercourse with RP a person then aged 14 or 15 and under his authority.	s66C(2) - 10 yrs	3 years conc. With each other

2    I have set these out in chronological order of commission, because it helps to demonstrate the extent of the Applicant’s criminality.

3    Offences 3 to 9 were included on a Form 1 or Form 2 rather than being included in an indictment. Accordingly, no separate penalty could be imposed in relation to them and they could only be taken in to account in fixing the penalty on some other charge. As I have indicated, they were taken into account in the sentence imposed in respect of the offence I have numbered 12.

4    In aggregate, the Applicant was sentenced to 13½ years imprisonment, including fixed or minimum terms totalling 10½ years. In arriving at the sentences he did, his Honour expressly stated that he took account of the principle of totality.

5    LO met the Applicant because he was the uncle of a friend. The Applicant cultivated an association which ensued, indulging her and his niece in ways in which their parents did not allow - playing loud music, smoking and allowing them to drink alcohol and taking both girls or the complainant alone for drives. He would turn conversation to the topic of sex. On the occasion the subject of the offences I have numbered 1 and 2, the Applicant drove the girls to Kings Cross and then back to his home. He provided some alcohol and said “Its time for us all to go to bed”. All three got into his bed. He invited the complainant to go out and have a cigarette. He and the complainant did so. While outside he asked the complainant to fellate him. She did so. That activity is the subject of the first charge.

6    They went back inside returning to the Applicant’s bed. His niece was not then there. The Applicant commenced foreplay and then had intercourse with her. That conduct constituted the second offence.

7    The conduct which constituted the 7th offence occurred when the Applicant had driven LO to a quiet location. He commenced to masturbate and grabbed LO’s hand and rubbed it up and down his penis. He began kissing her on the neck, LO objected saying “Stop it, your beard’s hurting my neck.”

8    The offences involving SW occurred in the following circumstances. The Applicant invited SW to a party where he supplied her with an alcoholic drink. She fell asleep on the lounge and woke to find the Prisoner had pulled her clothing to one side and was inserting his fingers into her vagina. This was offence number 3.

9    On the same day he took the victim home. After a short time he dragged her into the bedroom, removed her clothing and penile-vaginal intercourse to the stage of internal ejaculation occurred. SW complained and the Applicant responded in terms of “You’re too young to get pregnant.”. This was offence number 4.

10    Offence number 5 involve the Applicant on the same day pulling SW up on to his lap in front of the mirror and again having penile-vaginal intercourse. SW was crying. On stopping the Applicant said “twice.”

11    Offence number 6 occurred whilst SW was lying on the Applicant’s bed. He pinned her arms and again had penile vaginal intercourse for a short time before saying “Three” and “You wanted it”.

12    I have referred to the circumstances of offence number 7.

13    Offence number 8 was constituted by the Applicant rubbing his hands over SM’s breasts and kissing and hugging her during a singing lesson.

14    Offence number 9 also occurred during a singing lesson when the Applicant pulled SE up on top of his lap with her legs on top of his thighs. SE thought this was wrong and jumped off.

15    TD met the Applicant while he was the music master at a church the family attended. She was interested in singing and for some years he attended her home where he would have dinner and give her lessons. Later lessons occurred at an academy where the Applicant worked. When TD was 16 her parents separated, TD lived with her mother but there were often disagreements. TD would discuss her problems with the Applicant. At a time when, because of conflict with her mother and absence of space to live with her father, TD wished for other accommodation, the Applicant suggested to her that she stay at his place. She then moved in with him at Howard Avenue, Dee Why.

16    At some stage the Applicant moved to McIntosh Road, Narraweena. TD sometimes stayed the night. There they slept in the same bed but, according to TD, the Applicant never made advances to her in that situation. Later the Applicant moved to Alfred St, Mosman.

17    Sometime well before March 1996 TD had moved out but was still friendly with the Applicant. On 27 March 1996 he invited her and another girl to dinner. At about 12.30am the Applicant drove the other girl home but TD stayed at his place. He poured her a couple of drinks and a cup of tea. She remembered drinking the tea but nothing thereafter. On what seems to be the next morning she went home but she was so confused that her sister took her to a doctor. A blood test showed traces of benzodiazepine in her blood. She had not taken this knowingly.

18    Following complaints TD made to the police, they executed a search warrant on the Applicant’s premises. There they found 23 photographs of TD, 16 of which depicted her either asleep or unconscious in naked or semi naked, sexually explicit postures. Two were identified as having been taken between April and December 1995 at McIntosh Road. Eight were identified as having been taken around February 1996 at Alfred Street. Seven were also taken at Alfred Street probably on or about 27 March. None were taken with her knowledge or consent and offences 10 and 11 relate to the Applicant’s conduct on the first 2 occasions in arranging TD and her clothing for the purposes of the photographs.

19    RP commenced singing lessons with the Applicant in or soon after June 1996. Her family could not afford to pay for two lessons per week and the Applicant offered to provide one free. Later in that year she commenced to go to a theatre group with other girls at his house. During this period her grandmother became sick and she confided in the Applicant.

20    The Applicant cultivated the association. He told RP he was attracted to her and that she stood out from the others. RP started calling him and he her. He bought her flowers. Over a period he commenced kissing and petting. The 13th offence relates to an incident when he kissed her with an open mouth putting his tongue inside her mouth. The 14th and 15th charges relate to what would seem to be the next two incidents referred to in RP’s statement where he progressed to digital penetration of her vagina.

21    On these occasions the Applicant desisted when asked to do so, the request in that regard apparently inspired at least in part by the fact that as RP had previously told the Applicant, she had been raped at a younger age. On the second occasion the Applicant asked why RP kept pulling away and she said that it was because of her prior experience.

22    The circumstances of the 16th offence were that the Applicant took RP for a drive to a beach car park. There both got into the back seat and started kissing and petting. After digital penetration he asked if he could perform cunnilingus and when RP said yes, did so.

23    The 17th charge relates to the first occasion when the Applicant seems to have had penile vaginal intercourse albeit partial and brief with RP, this occurring at his home. RP joined him in the shower after this activity.

24    The 18th to 21st charges related to incidents of full penile-vaginal intercourse which progressed to the extent of internal ejaculation.

25    The 22nd charge related to an occasion when the Applicant was away on holidays with RP and her family. The two were preparing for bed in separate cars when the Applicant suggested to RP “Let’s do something dangerous and exciting. Let’s go and have sex at the front of your dad’s car”. They did so.

26    The material before Judge Freeman also included a victim impact statement by RP. In it she maintains that while under the influence of the Applicant she had difficulty in accepting her parents’ role in her life. She now feels that she betrayed their trust, blames herself and has been seeing a counsellor to regain her self esteem. She became separated from friends of her own age. Her concentration on school work has suffered and she has lost the desire to sing, something she had had in mind as her future career.

27    The Applicant kept a diary. In it he wrote “Bingo” to record the occasions when he had intercourse with RP. The only logical reason for the choice of that word is its meaning as an exclamation for success.

28    It is appropriate to record some history of the Applicant’s responses to the charges against him. That history indicates that the Applicant is entitled to some credit for acknowledgments of guilt but it is appreciably less than it might have been had he been more forthcoming earlier.

29    Judge Freeman recorded that the Applicant entered pleas to the charges involving RP at the Central Local Court on 8 December 1997. He stood for trial in August 1998 in respect of charges involving TD. There were 3 charges of unlawfully administering a stupefying drug and 3 alternative charges of indecent assault. He pleaded guilty to the latter charges but the pleas were not accepted by the Crown and the trial began. TD was called. Cross-examination of her commenced after lunch and continued until the morning adjournment of the second day. After that the Applicant sought to be re-arraigned and then pleaded guilty to the offences I have numbered 10 to 12. The Crown accepted those pleas in full satisfaction of the indictment.

30    Later a second trial commenced in relation to allegations by SW. There were 5 charges under s61J of sexual intercourse without consent knowing the victim was not consenting and in circumstances of aggravation, viz that the victim was under the Applicant’s authority. There were 5 alternate charges of sexual intercourse without consent, knowing the victim was not consenting. After a trial lasting 5 days the jury could not agree. It was 4 of these charges that I have numbered 3 to 6.

31    The Applicant pleaded guilty to the charges involving the victim LO 25 February 1999. It is not clear when he was charged in relation to her.

32    There few other matters of fact to which it is necessary to refer. The Applicant was born on 25 August 1950. He married, had 2 children, who by 1998 had reached adulthood. He and his wife separated in 1986 and divorced 2 years later. He has had no contact with his children for a number of years. In a pre-sentence report prepared in April 1998, it is recorded that a number of persons who and whose children had been students of the Applicant had stated that there had never been any hint of sexual connotations in their relationship with the Applicant. In a later report of September 1999, it is recorded that the Applicant may have gained some insight into his offending behaviour and was willing to seek psycho-therapeutic services in connection with his behaviour.

33    Nevertheless, it should also be noted that after a review of the circumstances of the Applicant’s offending Judge Freeman, in a passage quoted below, concluded that the Applicant was not silly but evil. There was no challenge in the appeal to that conclusion.

34    The grounds of appeal are:-
1. Manifestly excessive - the total sentence of 13½ years was manifestly excessive.
2. Totality - His Honour failed to have proper regard to the principal of totality.
3. In setting fixed terms for the first lot of offences His Honour failed to adjust those terms downwards to take into account that in the ordinary course of events the prisoner would have been released there quarters (3/4) of the way through the sentence.
4. Three (3) years fixed was manifestly excessive in relation to the RP offences.
5. His Honour erred in cumulating the administer stupefying drug sentence with the indecent assault sentences in relation to TD.
6. His Honour ailed to have sufficient regard to the indictable offence actually committed when sentencing the prisoner for the offence of administer stupefying drug with intent to commit an indictable offence.
7. The total effective sentence in relation to TD was eight and a half (8½) years with a minimum term of five and a half (5½) years. This sentence is excessive in relation to the TD offences.
8. His Honour erred in finding that the prisoner befriended the families of all the victims and then abused the trust of the parents. Only the parents of RP and TD were family friends.
9. His Honour erred in finding there were seven (7) years of sustained sexual exploitation. While the charges span 7 years from 1990 to 1997, there were no charges relating to the period of 1993 to 1994.

35    Some further particularity of some of these was provided in written submissions. Without attempting to be exhaustive in a reference to these, points made included the following:-
(i) There was insufficient credit given to the Applicant or his pleas of guilty.
(ii) There is no apparent credit given to the Applicant for the absence of any relevant criminal record.
(iii) None of the charges on the indictment related to non-consensual conduct.
(iv) Whilst the Applicant was introduced to his victims through the business he ran as a singing teacher, he was not a school teacher and not a spiritual teacher.
(v) The most serious of the Applicant’s offences, involving the administration of a drug, was an indecent assault offence rather than an offence of sexual penetration.

36    In amplification of the submission that insufficient attention had been given to the Applicant’s pleas of guilty, attention was drawn to the fact of the Applicant’s plea to the charges of indecent assault on TD and that, even though his plea to the drug administration charge was late, it amounted to an acknowledgment, important to the victim, of the truth of her allegation. These matters were contrasted with remarks of his Honour that “the prisoner is not entitled to the benefit which accrues to those who at least have the decency to avoid having their victims put through the trauma of trial.”

37    However, there is no necessary inconsistency between these matters. His Honour spent a little time in his remarks on sentence addressing the topic of the Applicant’s responses to the charges against him and, unless it be manifested in the sentences imposed - a matter which I address below - I see nothing to suggest that his Honour gave insufficient credit to the Applicant for his pleas.

38    Factually, the other matters referred to in the summary of the submissions are correct but, again, their significance is best judged in a consideration of the sentences themselves.

39    In that his Honour did refer, without qualification to the Applicant “ingratiating himself with the parents of his victims”, the eighth ground of appeal is made out. However the significance of this error should also be assessed in light of the sentences imposed.

40    When one has regard to the context of his Honour’s reference to 7 years, the ninth ground is not made out. What his Honour said was:-
“…and the other victims who fell prey to this man’s sustained and repeated campaign of debauchery over the years.
“I think it should be obvious that I reject the description contained within some of the references to the effect that the prisoner is not an evil man but a silly one, that he underwent some sort of mental aberration which caused him to act in ways which he had never previously displayed over a seven year period. It is rather too long to accept this is some form of continuing mental aberration. It is a demonstration of an underlying character trait. He was so persistent, so repeated, so premeditated in the way in which he dealt with these impressionable and vulnerable young women that, indeed, I think it is fair to describe him as not silly at all but evil.”

41    I turn then, to a consideration of the sentences themselves and the criticisms of them. In my view none of the criticisms are made out. Indeed, judged by the statutory provisions, the Applicant was fortunate in my view that the sentences imposed were not higher.

42    As commonly happens the submissions advanced largely ignored both the penalties which Parliament has provided and the purpose behind a number of the provisions against which the Applicant has offended. Section 66C for example, exists to protect the young and impressionable against persons such as the Applicant. It is unnecessary for the Court to reflect on whether the policy behind that provision is right or wrong but no long experience in the criminal work of this Court is necessary to be aware of the damage which conduct such as that indulged in by the Applicant can do to young minds. It is utterly irrelevant to a charge against that section that the conduct indulged in by the Applicant was consensual. Had it not been, his conduct would have merited charges under s61J carrying a much heavier penalty.

43 I do not suggest that any one of the Applicant’s individual offences involving RP fell within a worst case category meriting the maximum penalty. However, in determining the penalty each merited, a, if not the, fundamental consideration is the degree by which, having regard to that penalty, the Applicant’s conduct offended against the legislative objective - see R v Peel (1971) 1 NSWLR 247 at 262. By that test, I would have thought each offence merited a significant period of imprisonment. In so saying, I do not forget that one of the charges was of only indecent assault in circumstances of aggravation. But if, as I think, one of the objects of s66C is to prevent love, or perhaps more accurately, sex affairs between young girls and mature men - affairs which are calculated to have detrimental effects on the young of the nature of those referred to by RP in her victim impact statement - the totality of his offending conduct vis-a-vis RP amounted to, or at least approximated, not less than a worst case. The Applicant set out to attain the affection of RP and seduce her. Not only did he succeed but the consequences of his success were an effect on RP of the nature to which I have referred.

44    In so concluding, I am not unconscious of the fact that RP was 14 or 15, not 10 or 11 - ages which would have made his offending worse. Nor did she become pregnant or a complete emotional wreck. However his offending was deliberate, repeated, without any mitigating circumstances and apparently rejoiced in. And its repetition should be reflected in the sentence imposed for it.

45    It was submitted that the fact that the Applicant was only a music teacher, not a normal school or spiritual teacher, was itself a factor of which no adequate notice was taken. If there is any distinction, it is of limited relevance. The point is that his position placed RP under his authority. The submission in ground 4 that the 3 years concurrent sentences imposed in respect of the RP offences were excessive fails. But for the principle of totality, they should have been much higher.

46    Many of the remarks made in the context of RP apply also in relation to the Applicant’s offences against LO. Against the statutory penalty of 8 years for each offence, the concurrent sentences of 2 years imprisonment imposed for 2 of those offences are by no means excessive.

47    I turn to ground 5. The Applicant chose to commit offences against TD on 3 separate occasions. I see no possible reason why the sentences imposed in respect of the third of these should not be accumulated, particularly as it was of a different nature. While the totality of the result must be borne in mind, there is no principle that those who choose to offend repeatedly are entitled to concurrent sentences. Again, there can be no legitimate criticism of the sentences imposed on the indecent assault charges involving TD.

48    Any consideration of the sentence imposed in respect of the offence of administering a stupefying drug must give due recognition to the offences I have numbered 3 to 9 which were taken into account. As to these, his Honour said:-
“They are there to complete and to round out the picture of criminality of which this prisoner has been guilty over this period of time.”

49 This was an approach far too favourable to the Applicant. This Court said in Morgan (1993) 70 A Crim R 368 at 372 that “it is wrong in principle that there should only ever be little by way of addition to the penalty imposed upon the offence charged when another offence is taken into account pursuant to s21” of the Criminal Procedure Act 1986 (NSW).

50    It was asserted by Mr Byrne, senior counsel who appeared for the Applicant that one of the purposes of s21 was to enable an offender’s slate to be wiped clean and, perhaps as an inducement to have this done, the practice in the sentencing courts was to impose substantially less by way of penalty for matters taken into account than would occur if they were included in an indictment. To the extent to which the application to have matters taken into account amounts to an acknowledgment of guilt and any punishment for them and the offence charged must reflect principles of totality, it is of course proper that the penalty imposed for matters taken into account be less than if those matters had stood alone as individual and lone charges. Often the operation of the principle of totality may have the effect that relatively little is added for the charges taken into account.

51 However, subject to the limits imposed by s21 itself, (now replaced by s33 of the Crimes (Sentencing Procedure) Act 1999) it seems to me that there is no basis in either the statute or logic to justify a general approach of treating matters taken into account as thereby meriting a lower penalty than had they been the subject of specific charge. If the practice of sentencing courts is as Mr Byrne asserts, it is in my view, wrong.

52 Putting LO aside, the offences taken into account involved 3 further victims, 2 of them also children, 3 instances, albeit on the one day, of what used to be called rape and one of digital penetration of a vagina. The Applicant was so proud of his activities on that occasion that he saw fit to proclaim his score, notwithstanding the apparent distress his victim was exhibiting or had exhibited. Clearly the offences involving SW alone required a substantial penalty. I recently reviewed the topic of such offences in R v Kay [2000] NSWSC 716. It is sufficient to repeat part of what I there said:-
Statistics published by the Judicial Commission for the period January 1990 to July 1999 show that of 178 cases where imprisonment has been imposed for one count under s 61I, the median full term of imprisonment imposed has been 42 months and the median minimum or fixed term has been 24 months. Of 33 cases where there have been multiple counts, the medians have been 54 months and 36 months respectively. … one must recognise that, in the case of charges under sections 61(I) to 61(K), sometimes “multiple counts” reflect a number of acts of penetration on one occasion of only one victim.

53    Leaving aside issues of totality, there is nothing to suggest that the Applicant’s offences towards SW did not justify sentences reflecting the median for multiple counts.

54    The offence of administering the drug also required a salutary penalty in its own right. Of course in the circumstances it was appropriate to recognise that that the Applicant’s purpose in administering the drug was primarily indecent assault and photography. However, having regard to the terms of, and penalty prescribed by, s25 itself, there is no basis for concluding that the sole criterion for the determination of the appropriate penalty is the offender’s ultimate object at the time of a drug’s administration. It is, for example, appropriate to recognise the insult to a victim of being rendered unconscious and helpless and of the benefit to an offender of being able to minimise detection for whatever he may choose to do to a victim in that state. It would be quite wrong to sentence the Applicant for this offence merely on the basis of the criminality involved in any indecent assault that ensued.

55    When regard is had also to the offences taken into account, not only is there no basis for concluding that his Honour did not have sufficient regard to the third offence actually committed against TD but it is apparent that the sentence imposed was clearly within the legitimate exercise of his Honour’s discretion.

56    An assumption involved in the third ground is that the fixed terms of imprisonment imposed were the maximum full terms which could have been imposed. It is, I think, to be inferred that the reference “the first lot of offences” is intended to encompass all of the offences in respect of which fixed terms of imprisonment were imposed. These were offences 13, and 14-22 (involving RP), 1 and 2 (involving LO), and 10 and 11(indecent assaults on TD). From what I have said, it is apparent that I do not regard that assumption as justified.

57    I have so far dealt with the matter largely by reference to the statutory provisions and the gravity of the Applicant’s offences measured by them. However it was submitted that by reference to other decisions of this Court, it could be seen that the overall sentence imposed on the Applicant was excessive. It has been convenient to include a summary of these, others referred to by the Crown and a limited number of others which I have, without any attempt at an exhaustive search, come across, as a schedule to these Reasons. For the purposes of more easy comparison, I have also found it useful to tabulate a number of the more significant features of those cases although it must be recognised that it is not possible to include in such a table all of the relevant features, e.g. the relationship of the victim to the offender and the latter’s record and some approximations must be used. An example of the latter is my division of offences into simply sexual intercourse and other offences of indecency.

58    On behalf of the Applicant it was submitted that the circumstances in many of those cases were worse than those here. Attention was drawn to the fact that:-
in Lovatt - the children were younger and the offender their stepfather,
in Hill - the children were younger and the offender had a prior bad record with little or no hope of rehabilitation,
in Barrett - the offending occurred over a much longer period, and involved far more victims and offences,
in RWC - the children were younger, 2 were daughters and there were threats to kill, and
in ED - the children were younger, daughters and the offending had occurred over a longer period

59    It was submitted in effect that when recognition was given to the differences between the circumstances here and in those cases the sentence imposed in this case was excessive and simply could not be reconciled with those in Lovatt and Barrett .

60    With the last of these propositions, I agree. However it is impossible to reconcile the sentences in those two cases with the others to which I have just referred. Furthermore, the sentence in Barrett was that of the judge at first instance and thus does not bear the authority of this Court, beyond the decision that it was not excessive.

61    It must I think also be recognised that it is impossible to reconcile the sentence imposed in this case with the sentences imposed in a number of the other cases to which I have referred, although when account is taken of the offence of administration of a stupefying drug, the degree of disparity is less than it first may appear. However, the sentence imposed on the Applicant is not out of line with those imposed in Hill and RWC and, when the number of victims is taken into account, in ED. Particularly is this so when allowance is made for the element of discretion which exists in sentencing judges and there is recognition that, for an offender, there is not just one correct sentence.

62 In this situation I am not persuaded that the sentence imposed on the Applicant, and which I regard as fully justified by a comparison of his conduct and the provisions of the Crimes Act against which he has offended - and that, after all, is the prime criterion - is one which was beyond the legitimate exercise of Judge Freeman’s sentencing discretion.

63    Given the magnitude of the sentence imposed, the Appellant should have leave to appeal against sentence but the appeal should be dismissed.


SCHEDULE


In R v Hill (unreported CCA 7 July 1992) the Appellant pleaded guilty to three charges of homosexual intercourse with one boy, eight charges of sexual intercourse with various boys, two charges of inciting one boy to have homosexual intercourse with another boy and one charge of inciting an act of indecent assault. One boy was aged about 14 or 15 but the ages of the other six ranged from 9 to 12.

The offences were committed without violence and in most cases the victims were co-operative but the Applicant had seriously injured the boys in their sexuality. The Applicant had a prior bad record for sexual offences. Taking the view that there was a need to protect the public and little or no prospects of rehabilitation, this Court declined to interfere. Sentences for all offences had been made concurrent, the longest being a minimum term of 12 years and an additional term of 4 years, imposed on a charge of sexual intercourse with a boy under 10.

R v Eagles (unreported, CCA, 16 December 1993) this court dismissed an appeal against sentences totalling 10 years including a minimum term of 7 years in respect of 18 offences including 4 of homosexual intercourse. There were five victims aged between 8 and 12 and they had been under the Applicant’s control as a “baby sitter” or through his scouting movement. His admission of guilt in respect of most of the offences occurred after his conviction in respect of six offences against one victim. The Applicant’s conduct had led to at least two of the victims experiencing difficulties in their own sexual adjustment and a third having other significant problems. The court recorded that the sentence was perhaps at or near the top of the range. The Applicant was 58 at the time of his appeal.

In R v H (unreported CCA 25 July 1994), referred to in R v RWC , the Appellant had pleaded guilty to 10 offences against his daughter between the time she was 1 and 12 years old and one charge of indecent assault against one of her friends. The 2 most serious charges were of sexual intercourse with a person between 10 and 16 who was under the authority of the Appellant, for which, under s66C(2), the maximum penalty was 10 years penal servitude. All other offences carried maximum periods of incarceration of between 2 and 6 years. The nature of the charges brought was emphasised by the Court.. The Appellant had no record. This Court reduced an effective sentence of 11½ years minimum term and 5 years additional term to one of a minimum term of 8 years and an additional term of 3 years.

The decision in this case was arrived at following a search by counsel at the Court’s request for cases where comparable sentences had been imposed. It is unnecessary for me to refer to those again here beyond recording that the heaviest sentence identified was that in R v Hill referred to above.

In R v RWC (unreported CCA 4 August 1994) this Court held that sentences involving a minimum term of 12 years and an additional term of 3 years were not excessive even though cumulative to a further sentence which meant the Appellant’s time in prison would exceed 13 years. The offences under consideration had occurred over two periods 1984 to 1986 and 1990 to 1992. Twelve offences involved penile penetration, 9 involved digital penetration and 3 involved indecent assault. The ages of the 4 victims varied from 8 years to 15 years. Two were the Appellant’s daughters and the Appellant had threatened at least some of the victims saying he would kill or hurt them. At the time of commission of 14 of the offences, the Appellant was on bail awaiting trial in respect of a similar offence.

In R v H , (unreported, CCA 24 October 1994) this Court declined to interfere with sentences totalling 20 years, with an effective minimum term of 14 years. Gleeson CJ remarked that the case was extraordinary and involved sexual perversion and physical cruelty of a remarkable kind, engaged in over many years. The victims wee the Appellant’s daughters whose ages during the 15 year period of offending ranged from 11 to 25 years. The offences including three of incest, seven of sexual intercourse without consent, two of sexual intercourse without consent with a person under 16, one of indecent assault on a female under 16, one of indecent assault on a person under 16 by a person in authority, two of common assault and one of assault occasioning actual bodily harm.

This Court saw no error in His Honour’s approach notwithstanding that he had remarked that the minimum term had be4en reduced beyond what would otherwise have been appropriate on account of subjective matters to which it is unnecessary to refer.

R v Holyoak (1995) 82 A Crim R 502 the Applicant’s sentence was reduced by this court to an effective term of 7 years including a minimum term of 6 years in respect of 4 offences of indecent assault on three children aged between 9 and 15 and under his care. A jury had found the Applicant guilty in respect of two of the offences and he had then asked that the further two be taken into account. The offences occurred over a 3 year period. The applicant was 75 at the time of sentence which occurred some 18 years after the last of the offences.

In R v ED (unreported CCA 22 November 1996) the Appellant had been sentenced in respect of 15 offences against two daughters. Those involving daughter B began when she was 8 or 9 and continued until she was 20, those involving the daughter A commenced when she was 10 and continued until she was 21. The charges included:-

(i) 2 indecent assaults on A, one when she was about 10.
(ii) Carnal knowledge of A aged 10.
(iii) 3 of sexual intercourse with A when above 10 and under 16.
(iv) 5 of carnal knowledge of B when aged about 17 to 20.
(v) 4 of sexual intercourse with B when above 10 and under 16, viz about 14 or 15 and under authority.

Influenced apparently by a schedule of prior cases showing a level of sentencing which, with the exception of R v H (unreported, CCA, 24 October 1994) was lower, this court reduced by 3 years the minimum and full terms which had been imposed. The result was an effective overall sentence of 13 years with a minimum term of 10 years.

In R v Barrett (unreported, CCA, 3 March 1997), the Applicant had pleaded guilty to 29 charges, including 19 of indecent assault, 6 of buggery, 2 of procuring an act of indecency with a male and 2 of assault with intent to commit buggery. Five victims were involved, one aged 9, two aged 11 and two aged 12. The offences occurred over an 8 year period. After his arrest the Appellant voluntarily disclosed other offences and 44 offences occurring over 19 years and involving some 13 other victims were included on a Form 2 and taken into account. One of these victims was 8 and the others generally within the range of 12 to 16 years. The Appellant’s conduct was described a sustained and exploitive paedophilic activity although not a forceful or violent nature. It was accepted that the Appellant had himself been regularly sexually assaulted over a long period of his school-days by adult Brothers of the Catholic school he had attended and at least for a time came to believe that there was nothing wrong with the behaviour. The Applicant had also ceased his conduct well before it was exposed.

All sentences were ordered to be served concurrently, the longest being of a minimum term of 7½ years with an additional term of 2½ years. This Court dismissed an appeal against sentence.

R v Ryan (unreported CCA 2 March 1998) this court refused to interfere with effective sentences comprising a minimum term of 11 years and an additional term of 5 years on a priest who had sexually abused twelve victims aged between 6 and 14, there being fourteen offences charged involving these victims. Also taken into account were thirty nine further offences involving a further sixteen victims. The sentences were cumulative on sentences including a minimum term of 4 years and an additional term of 2 years previously imposed in respect of twenty similar offences. (It seems likely that R v Ryan (unreported CCA 20 August 1996) is the report of an unsuccessful Crown appeal in respect of the prior sentences. The report contains few details of the offences there under consideration although it does record that the offender was 58 at the time of the appeal.)

In R v Lovatt (unreported CCA 29 July 1998) the Appellant, who had no significant record, pleaded guilty to:-

(i) Three counts of indecent assault and three of sexual intercourse involving digital penetration or cunnilingus on a step daughter aged 11.

(ii) Two counts of indecent assault and one of sexual intercourse involving digital penetration of another step daughter aged about 8.

(iii) Two count of indecent assault and two of fellatio with his step son aged 8.

The offences occurred over a period of about 3 years and the Appellant’s actions were regarded as a continuous act of serious misconduct. Observing that the Appellant had also suffered the loss of the trust of his family and of their companionship and that itself was a “serious punishment” this court reduced the sentence imposed to one of a total period of 6½ years with a non-parole period of 3½ years.

In R v Fisk (unreported, CCA, 21 July 1998), the Applicant pleaded guilty to 24 charges involving 3 victims, aged between 13 and 19 at the time of the offences. Those involving the first victim occurred in 1974 to 1978. Those involving the second and third victims occurred in 1986, 1987 or 1988. Fourteen or more involves some form of intercourse. In the case of 2 of the victims, the sentencing judge found that “their lives have been profoundly changed and degraded by your conduct”. Some discount had been allowed to the Applicant for assistance to the authorities. This Court declined to interfere with sentences of minimum and additional terms of 9 and 3 years respectively.

R v AGR (unreported CCA, 24 July 1998) a jury found the Applicant guilty of three sexual offences. He thereupon pleaded guilty to some others and asked that further offences be taken into account. There were 18 in all, five involving intercourse. The balance involved other acts of indecency and some also of assault. There were six victims, two of whom were the Applicant’s brothers and one of whom was 10 years the Applicant’s junior. At the time of the offences the victims’ ages ranged from about 6 to 15 years. The offences occurred over a period of 23 years.

At the time of sentence the Applicant was aged 47, showed significant remorse. a factor this Court regarded of significance was that the Applicant had himself been sexually abused by his father and had a dysfunctional childhood. After referring to the decisions in R v Hill , R v Eagles , R v Barrett , R v AB (the decision of 7 July 1997) and R v Ryan referred to in this schedule this court reduced the sentences imposed to imprisonment for, effectively, 12 years with a minimum term of 8 years.

R v Bell (unreported Davidson DCJ 12 February 1999) the offender was convicted by a jury of 28 offences involving 5 children. He then pleaded guilty to a further 16 offences involving 13 victims and asked that a further 31 charges be taken into account. The victims were aged between 12 and 15 at the time of the offences and the sentences imposed aggregated 14 years including a minimum term of 10½ years.

A matter regarded as of significance was that the offender was aged 64 at the time of sentence. He was regarded as having limited contrition but as being unlikely to re-offend. In arriving at the sentence imposed, Judge Davidson was influenced by the decisions in Eagles, Fisk and AGR referred to above.

The charges included 22 involving anal intercourse. The vast majority occurred between 1981 and 1991. Davidson DCJ found that the Prisoner had deliberately seduced the victims though recognising that his actions were potentially harmful in a profound and lasting way. There was no aggravated violence or sexual conduct and the Applicant was not in a more structured relationship such as teacher/student or parent/child.

R v Boys [1999] NSWCCA 11 this Court dismissed an appeal against sentences amounting to a minimum term of 7½ years and an additional term of 2 years in respect of eight offences against five girls each of whom had been a pupil of the Appellant. 2 offences were committed against each of 3 of the girls. Seven of the offences were under Section 73 which dealt with carnal knowledge by a teacher or father. 2 offences occurred when the section dealt with girls over 10 but under 16 and provided for imprisonment for 10 years. 5 offences occurred when the section dealt with girls over 16 but under 17 and provided for imprisonment for 8 years. The eighth offence was of indecent assault. The Appellant was described as “a manipulative sexual predator” who abused his position of trust, exploited his power and subjected the girls to emotional blackmail.

R v AB (No 2) 2000 NSWCCA 467 this court reduced to 15 years including a non-parole period of 12 years the sentence imposed on a Marist Brother who, over a period of 11 years abused 15 children, aged mainly between 9 and 11, who had become his students during the period. There were 67 offences in all, most involving masturbation but including six of sexual intercourse without consent on a child under 16 and seven of sexual intercourse without consent on a children under 16 by a person in authority. The intercourse seems to have been digital or cunnilingus. The sentencing judge found that each of the victims “had suffered sorely at his (the offender’s) hands. Each of them has been warped and distorted in personal development. Each will face prolonged difficulties in inter personal relationships…”.

The offender had a strong subjective case. Inter alia, prior to his arrest, he had been treated for his paedophilia and other disorders, not offended for 9 years and was regarded as unlikely to re-offend. The court recognised the sentence would be served in protection, even possibly from other prisoners in protection.

The offender was regarded as contrite and had volunteered his involvement in a number of the offences. He pleaded guilty and waived certain extradition rights he had in relation to these. In arriving at the ultimate sentence, a discount of 25% was allowed for matters referred to in this paragraph.

In an earlier appeal by AB (unreported, CCA, 7 July 1997) this court had declined to interfere with the sentence originally imposed of 18 years with a minimum term of 13½ years but the High Court (1999) 198 CLR 111 had subsequently held that error had been made in that weight had not been given to the utilitarian value of AB’s voluntary revelation of the facts of what were referred to as “post extradition offences” and to the waiver of the Appellant’s rights not to be charged with them - see 2000 NSWCCA 467 at [70].

TABLE

The following table reflects only some of the more significant features of the cases listed. It must be recognised that it is not possible to include in such a table all of the relevant features, e.g. the relationship of the victim to the offender and the latter’s record and some approximations must be used. An example of the latter is my division of offences into simply sexual intercourse or other indecency.

Offender	Victims	Ages	Offences	Period (years)	Sentence Min/Add
Sexual intercourse	Other Indecency
Hill	7	9-15	13	10	12/4
Eagles	5	8-12	4	14	7/3
H 7/94	2	1-12	2	9	128/3
RWC	4	8-25	21	3	612/3
H 10/94	2	11-25	12	5	1514/6
Holyoak	3	9-15	Nil	4	36/1
ED	2	8,10-21	13	2	1210/3
Barret} *	5	9-12	6	23	87½/2½
} *	13	8-16	+ another 44 offences of some type	19
Ryan	28	6-14	Not known -53 offences in total	Not known -53 offences in total	2011/5 cum on prior 4 yr. Term
Lovatt	3	8-11	6	7	33½ /3
Fisk	3	13-19	14	10	79/3
AGR	6	6-15	5	13	238/4
Bell	18+	12-15	22	53	10+10½/3½
Boys	5	of or under 16	7	1	57½/2 ½
AB	15	9-11 (mainly)	13	54	1112/3
Dawson **	6	14-15	15	6	610½/3

Notes
* These offenders were sentenced in respect of the totality of the offences referred to in two lines.
** In this case there is also an offence of administering a stupefying drug.

64    BARR J : I agree with Hulme J.
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