R v Doherty, Carl William

[2018] NSWDC 120

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v DOHERTY, Carl William [2018] NSWDC 120
Hearing dates:	12 March, 2018
Date of orders:	11 May 2018
Decision date:	11 May 2018
Jurisdiction:	Criminal
Before:	His Honour Judge Lerve
Decision:	Aggregate sentence
Catchwords:	Sentence – multiple offending – multiple victims – historical offending – determining sentencing trends and practices at the time of the offending - assistance
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Sentencing Act, 1989
Cases Cited:	AJB v R [2007] NSWCCA 51 PWB v R [2011] NSWCCA 84 MC v R [2017] NSWCCA 316 Cahyadi v R [2007] NSWCCA 1 R v AD [2008] NSWCCA 289 Denham v R [2016] NSWCCA 309 R v Donald [2013] NSWCCA 238 Hermann v R (1988) 37 A Crim R 440 R v Holder [1983] 3 NSWLR 245 Holyoak v The Queen (1995) 82 A Crim R 502 Humphries [2004] NSWCCA 370 Khanwaiz [2012] NSWCCA 168 R v Madeley [2018] NSWDC 35 Magnuson v R [2013] NSWCCA 50 R v Moon [2000] NSWCCA 534 R v Muldoon unrep. NSWCCA 13.12.1990. R v TWP [2006] NSWCCA 141 Ryan v The Queen (2001) 206 CLR 267 R v Sukkar [2006] NSWCCA 92 Todd v R [1982] 2 NSWLR 517 Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1 SZ v The Queen [2007] NSWCCA 19
Category:	Sentence
Parties:	Director of Public Prosecutions Carl William Doherty
Representation:	Counsel: Ms C Mendes   Solicitors: Crown – Ms L Hanshaw Offender - Mr J Weir
File Number(s):	2016/274832
Publication restriction:	I direct that there be no publication of the names of the victims or anything that might tend to identify them. This extends to the whereabouts of the victims and their occupations.

SENTENCE

1. I DIRECT THAT THERE BE NO PUBLICATION OF THE NAMES OF THE VICTIMS OR ANYTHING THAT MIGHT TEND TO IDENTIFY THEM. THIS EXTENDS TO THE WHEREABOUTS OF THE VICTIMS AND THEIR OCCUPATIONS.

2. Carl William Doherty appears for sentence in respect of 22 counts of sexual offending against seven different victims, all of whom were students at the Junee High School where the offender was a teacher. The offending for which the offender appears for sentence occurred between April 1965 and May 1981. However, as will become apparent later in these remarks, there were significant breaks in the offending.

3. The offender was committed for sentence in respect of seven counts of Buggery contrary to s 79 of the Crimes Act, 1900, one count of Attempted Buggery contrary to s 80 of the Crimes Act and fourteen counts of Indecent Assault Male contrary to s 81 of the Crimes Act, as it then was. The pleas of guilty were entered at an early stage, and accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. In respect of the victim MJH there is another factor that entitles the offender to a further numerical discount, details of which will become apparent later in these remarks.

4. The maximum penalty of the offence of Buggery was 14 years imprisonment. The maximum penalty for all of the other charges, ie the Attempt Buggery and the Indecent Assault Male, was 5 years imprisonment. There is no issue of a standard non-parole period in respect of any of the offences.

5. As the offender was committed for sentence, the charges are contained within Court Attendance Notices. Sequences 1 to 6 inclusive on H62322115 relate to the victim CH, relating to conduct that occurred between 25 April 1965 and December 1969. Sequences 1 to 4 inclusive on H61592215 relate to the victim SLB relating to conduct that occurred between September 1966 and December 1971. Sequences 1 to 6 inclusive on H550654691 relate to the victim CNB, relating to conduct that occurred between January 1969 and December 1969. The one sequence on H63936259 relates to the victim BWG relating to offending that occurred in 1971. Sequences 1, 2 and 3 on H62695211 relate to the victim MJH relating to conduct that occurred in 1974. Sequences 1 and 4 on H65548188 relate to the victim PTH, relating to conduct that occurred between the beginning of 1979 and April 1980. The one sequence on H225977797 relates to the victim CK, relating to conduct that occurred in 1981. All victims were students at the school where the offender taught. All offences involve a significant breach of trust.

6. It needs to be acknowledged that the sentence that will ultimately be imposed on the offender is less than what would be imposed had that offending occurred more recently. This court is obliged to sentence this offender in accordance with the prevailing sentencing practices at the time of the offending. Further, since the offending with which the court is concerned, the legislation has been substantially amended, those amendments including substantially increased maximum penalties.

Facts

7. The facts are before the Court by way of Statement of Agreed Facts, which is at Tab 8 of the Crown tender bundle, exhibit A on sentence. Given the number of matters, I will make an assessment of the seriousness of the matter when dealing with the facts.

8. On the issue of the objective seriousness of the offending it is appropriate to note that at the time of the offending the charge of Buggery and all of the other charges on which the court is to pass sentence contemplated conduct of a consenting nature between adult men. There were not at the time specific offences relating to young victims as in the Crimes Act in its present form. Ms Hanshaw for the Crown and Ms Mendes, counsel for the accused, have each made extensive submissions in their written submissions (MFI 1 and 2 on sentence respectively). I observe that any sexual offence against children is serious. The determination of the seriousness of a matter is in the context of that type of matter that comes before the courts.

9. At all relevant times the offender was a teacher at Junee High School teaching manual arts, ie woodwork, metalwork and technical drawing. The victims were students at the same school. All offences involve a very substantial breach of trust. That breach of trust is factored into my assessment of the seriousness of the offences. This is so even for the last two sequences involving CG, who was 19 at the time of the offending. However, he was still at school and there was still the teacher/student relationship between the offender and victim.

Matters involving CG – H62322115

10. CG commenced High School in 1963 and attended that school until 1969. He repeated 4th Form (now known as Year 10) because of illness. During these years the offender taught the victim.

11. Sequence 1, a charge of Indecent Assault Male occurred on Anzac Day 1965, when the victim was 14 years and 10 months of age. The offender was 29. Prior to that day the victim was told by his mother that he was going a trip with the offender. The victim recalls seeing the wreaths on the memorials while travelling to the Tumut area. The two of them camped in the Tumut area and slept in sleeping bags in the rear of the offender’s station wagon. The offender told the victim not to sleep wearing clothes and he went to bed wearing underwear. The offender took most of his clothes off and got into his sleeping bag. Before the victim fell asleep the offender began playing around and tickling the victim. The offender then grabbed the victim’s penis and began to stroke it. This continued for some time after which the offender removed his hand and went to sleep. The victim had little sleep that night. The next day they travelled to Canberra. The offender told the victim not to tell anybody about what had happened the night before.

12. The matter involves skin on skin contact with a significant age difference between the victim and offender. There was no ejaculation. The victim was in the care of the offender and was away from his family. There was no force or coercion but the victim was told not to tell anybody. The Crown maintains that the matter falls slightly above mid-range and Ms Mendes submits that the matter is just below mid-range. The matter is in my opinion within the mid-range.

13. The offender was involved in kayaking and would from time to time take students away on kayaking trips. The offender had some of the students make their own kayaks. The victim CG went away with the offender on a number of these trips.

14. Sequence 2 is a further charge of Indecent Assault Male which occurred in the period 25 April 1965 to the end of 1969; the victim cannot be any more precise. Specifically relating to sequence 2, on one occasion after returning from kayaking one weekend the victim was helping the offender put away kayaks in the woodwork room at the school. Once the kayaks were put away the offender told the victim that he should clean himself up by having a shower. The offender gave the victim a towel and he went to the showers. The shower room had two shower heads coming from a wall with no partitions between the showers. The victim was standing naked in the shower when the offender entered and began showering with the victim. The offender began mucking around with the victim by wrestling with him while they were both showering. The offender grabbed hold of the victim’s penis and fondled it. The offender used soap as a lubricant and rubbed the victim’s penis until he ejaculated. Both finished showering and got dressed and the offender drove the victim home.

15. Sequence 3 involves very similar conduct to that to which sequence 2 relates. During the period 1965 to 1969 the victim continued to be involved in kayaking with the offender. The victim recalls another occasion when both he and the offender were in the showers. The offender masturbated the victim to ejaculation.

16. Sequences 2 and 3 also involved skin on skin contact when the offender was supervising the victim. Again, there is the significant age difference and the position of trust. There was ejaculation on both occasions. There is no evidence of coercion. The Crown submits that sequences 2 and 3 are within the mid-range and Ms Mendes submits that the matters are low end of mid-range. Both are mid-range offences.

17. Sequences 4, 5 and 6 are all counts of buggery that occurred in the course of separate instances.

18. So far as sequence 4 is concerned, the offender was also involved in taking the students from the school to play squash. The victim remembers that he played squash in 1966 as it was a requirement that a student had to be in 4th form in order to be permitted to play squash. Initially the offender would take the students to Wagga Wagga but later went to Temora. On one occasion when returning from playing squash in Temora, the offender took a number of children home. The victim remembers one occasion when it was raining. The victim was the last student in the vehicle. The weather was wet and raining heavily. The offender drove the victim out past the Junee cemetery and down a lane. After the vehicle stopped the offender got the victim to climb over into the back of the vehicle where they lay down sleeping bags and blankets. The offender then climbed into the back of the station wagon. The offender undressed himself and the victim and began stroking the victim’s penis, which became erect. The offender got the victim to lie on his stomach and using hair cream as a lubricant inserted his penis into the victim’s anus, which caused the victim considerable pain. The offender ejaculated inside the victim’s anus. The offender told the victim not to tell anyone what was happening.

19. There is an issue as to the age of the victim. The agreed facts set out at paragraph 24 that the victim was approximately 16 years of age at the time that the offence to which sequence 4 relates was committed. Ms Mendes argues in paragraph 20c on MFI 2 that the offender should receive the benefit of the doubt in that the timeframe of the averment in the court attendance notice is 1966 to 1969. I propose to deal with the matter on the basis of the agreed facts, namely that the victim was approximately 16 years of age. In this regard see Khanwaiz [2012] NSWCCA 168 at [96] per Beech-Jones J.

20. However, even if the submission by Ms Mendes was adopted, there was still the teacher/student relationship between the offender and the victim. There was no force but the victim was caused pain. The Crown correctly submits that the facts are silent as to consent or lack thereof. The Crown submits that the offending was at the lower end of the mid-range whereas Ms Mendes submits the matter is just below the mid-range. In all of the circumstances I am of the opinion that the matter is within the mid-range, but at the low end of that mid-range.

21. Sequence 5 relates to an occasion during the period 1966-1969 when the offender drove the victim out on the Gundagai Road and turned off into a laneway. After the offender parked the vehicle, both the offender and the victim climbed into the rear of the vehicle and got undressed. Again using hair cream as lubricant the offender inserted his penis into the victim’s anus. The facts recite that this was not an isolated incident.

22. Ms Mendes on behalf of the offender correctly submits at paragraph 21b of MFI 2 that the only relevance of the acts not being isolated is to deny the offender leniency to which he may have been entitled if the act was an isolated one. In respect of sequence 5, given the absence of any statement to the contrary to the facts, the offender must be sentenced on the basis that the victim was aged 19. There was however the issue of the teacher/student relationship. There is no suggestion of coercion or force. There is nothing within the facts that would entitle the court to find a lack of consent. The court could not be satisfied beyond reasonable doubt that there was ejaculation. The Crown submits that the conduct to which sequence 5 relates is towards the lower end of the mid-range, whereas Ms Mendes submits on behalf of the offender that the conduct is at the upper end of the low range. In all of the circumstances the matter is moderately below the mid-range. The fact that the facts recite that the matter to which sequence 5 relates was not isolated is why the indicative sentence for that matter will be slightly higher than that for the offending to which sequence 6 relates.

23. Sequence 6 occurred in 1968 or 1969 when the victim was between 17 and 19. Given the uncertainty, the court must proceed to sentence on the basis that the victim was at or towards the upper end of that age range. The offender took the victim to an area near Bethungra and parked at an area near where the railway line crossed the Olympic Way. They both went some distance into the bush where a blanket was placed on the ground. The offender and the victim undressed and the victim stroked the victim’s penis until it became erect. The offender penetrated the victim’s anus with his penis. The offender took photographs of the act. On the agreed facts the court could not be satisfied beyond reasonable doubt that there was ejaculation. The Crown submits that the offending is within the mid range or marginally below mid-range. Ms Mendes on behalf of the offender submits that the offending is at the high end of the low range. As with sequence 5, I am of the opinion that the matter is moderately below mid-range.

24. The facts also recite that after the victim left school the offender built up a relationship with the victim’s parents and was invited to a number of events, including the victim’s 21st birthday party and his wedding. The facts also recite that the victim cannot explain why, but he considered the offender to be a friend.

25. In September 2016 the offender telephoned the victim and they met in Harden where the offender told the victim that he (ie the offender) had been spoken to by police and that the police were charging him with playing with boys. The offender nominated two complainants associated with this investigation.

26. After reading that police had seized photographs from the offender’s residence the victim believed that police would find photographs of him and the offender. He disclosed the sexual assaults to his wife who contacted the police. The offender was arrested on 1 December 2016 and declined to comment about the allegations made by CG.

Matters relating to SLB – H61592215

27. There are four sequences involving the victim SLB, namely three counts of buggery and one count of indecent assault male. The conduct occurred between 1966 and 1971 when the victim was aged between 13 and 17. The victim was a student at the Junee High School where the offender was a teacher. The offender was in his 30’s.

28. The victim began 1st form high school (now Year 7). The offender requested the victim to stay back after school to assist with projects the offender was undertaking and he was also asked to assist with various restoration projects within Junee on weekends.

29. Not long after the victim’s 13th birthday the victim was permitted by his parents to go with the offender on a weekend trip. During that camping trip they set up camp for the night in the offender’s station wagon in bushland. They got into separate sleeping bags. After a short period of time the victim felt the offender’s arm come over and onto his groin area. The offender began to stroke the victim’s groin through the sleeping bag. The victim recalls feeling uncomfortable but became aroused by the offender’s actions.

30. The offender removed the victim’s sleeping bag and underwear, turned the victim on to his stomach and spread his legs. The offender then applied lubricant of some sort to the victim before inserting his penis into the victim’s anus causing pain. The victim maintained he was “frozen in fear”. The offender thrust his penis in and out of the complainant a number of times and ejaculated in the victim’s anus.

31. The victim was 13 and under the authority of the offender. There was ejaculation. There is no suggestion of force or coercion but the victim was only 13. There was a significant age difference between the victim and the offender. The Crown submits that this offending is above mid-range and Ms Mendes for the offender submits that the matter is within the middle of the mid-range. Noting the age of the victim and the ejaculation and that it occurred in a relatively isolated area at night when the victim was away from his family and that the victim was in the offender’s care, the matter is slightly above mid-range.

32. The offence to which sequence 2 relates occurred in the early part of 1967. The victim continued to assist the offender after school, including constructing a canoe. The victim was invited to give the canoe its “maiden voyage” on the Murrumbidgee River. Once at the beach on the riverbank the pair removed the canoe from the roof of the offender’s vehicle and sailed (or floated) around the river for a short period of time before pulling up at a sandy island. Both the victim and offender were dressed in “Speedo” type bathers. As the victim and offender were sitting and talking, the offender reached over and placed his hand down the victim’s Speedos and fondled and stroked the victim’s penis until it became erect. The offender then exposed his own penis from his bathers. The offender rolled the victim on to his stomach, pulled the victim’s speedos to his ankles and inserted his penis into the victim’s anus. The offender thrust his penis in and out a number of times until he ejaculated into the victim’s anus. The victim stepped into the river and washed the semen from his anus. There was no conversation about what had occurred.

33. This offending also occurred in an isolated area where there was no one around. The offender was supervising the victim who was 13 years of age. There was ejaculation. There is no suggestion in the facts of force or coercion, but again, the victim was 13. The parties make the same submissions as to the seriousness of this conduct as they did for sequence 1. In all of the circumstances noting the nature and circumstances of the offending the matter is slightly above mid-range.

27. The facts also recite that over the following weeks and months the victim felt ashamed of what had occurred and felt unable to tell his family as he felt that he would not be believed.

28. Going to sequence 3, a further count of buggery, during 1968 the victim and a number of other boys travelled with the offender in his station wagon to play squash at Temora. On each such occasion the victim was the last of the boys to be dropped off. On one occasion the offender drove the victim to a quiet road near the outskirts of Junee where he fondled the victim’s penis. The facts then recite that the offender held the victim down and penetrated his anus with his penis and sexually assaulted him.

29. Again, the victim was 13 and under the care of the offender. Again, there is ejaculation. Again, the offending occurred in an isolated area. The facts recite that the victim was “held down”. The Crown submits that the offending falls above mid-range, whereas on behalf of the offender it is submitted that the offending is at the upper middle of the mid-range. Given the nature and circumstances of the offending, the matter is slightly above mid-range but marginally more serious than the offending to which sequences 1 and 2 relate.

30. In 1968 the victim and his family moved to Sydney. In 1971 the victim, then 17 years of age, was involved in a serious motor bike accident that resulted in him wearing a cast for about 6 months. During this period the offender visited the victim. The victim agreed to go with the offender to the offender’s parent’s residence in Collaroy. They both slept in the one room with the offender occupying an upper bunk and the victim the lower bunk. After they went to bed, the offender began to question the victim about his sexuality. The victim told the offender that this was inappropriate and changed the subject.

31. A short time later the offender approached the victim and started to fondle his penis. The victim could not be on his stomach because of the cast he was wearing. The offender pulled down the victim’s pants and performed fellatio on him until he ejaculated. The offender returned to his own bunk and the victim fell asleep. The following day the victim returned home.

32. The Crown submits that this conduct is above mid-range. Ms Mendes submits that the offending is at the low end of the mid-range. There was no longer the teacher/student relationship. The victim was wearing a cast, which no doubt would have made movement difficult. On the facts there was no force or coercion, but the victim had told the offender that discussion of his sexuality was inappropriate. The offending is within the mid-range.

33. The victim went to police in Queensland and made a statement about the conduct of the offender. Police in Wagga Wagga subsequently became involved in the investigation. On 2 September 2016 police spoke to the offender at his house in Junee. He admitted to having a sexual relationship with the victim. He admitted to having sexual intercourse with the victim, but said also because of the passage of time he could not give the specifics of each occasion. The offender also told police of his liking for young boys. He also maintained that the he did not believe he had raped the complainant, but rather it was a mutual relationship. That rather overlooks the teacher/student relationship, the age of the victim when the victim was in Junee and the very significant age difference between them.

34. The offender was again interviewed in September 2016 under what is described as special caution. The offender made full admissions to having anal intercourse with the victim on a number of occasions.

Matters relating to CNB – H550654691

42. There are five sequences all charges of Indecent Assault Male contrary to s 81 of the Crimes Act as it then was involving the victim CNB. All of the offences involving CNB occurred in 1969 while the victim’s mother was also a teacher at the same school as the offender. The victim had his 13th birthday in April 1969. He was in 2nd form. The offender would have been about 34 at the time.

43. The victim was required to undertake a compulsory woodwork class that was taught by the offender. The offender began to show an interest in the victim and friendship developed. The victim was permitted to work on projects after school with the offender.

44. Sequence 1 occurred towards the end of the school year. The offender and victim were together in the woodwork room chatting, when the offender suggested that they should have a shower. The victim was led to the shower room within the school grounds. The victim reluctantly undressed and got into the shower. The offender likewise undressed and got into the same shower. While talking to the victim the offender reached out and took hold of the victim’s penis with one hand and then proceeded to fondle it. The facts recite that the victim felt very shocked, felt uncomfortable and felt totally submissive and unable to tell the offender to stop.

45. There is no suggestion of force or coercion or ejaculation in the facts. The contact was skin on skin, with the offender being naked with the victim in the shower. I infer from the facts that the assault continued for a relatively short period of time. Given the age of the victim, the position of the offender, that the offender was naked and the nature of the conduct I am of the opinion that this matter is mid-range but towards the lower end of the mid-range.

46. Sequence 2 also occurred in the final school term. The offender approached the victim to assist with pulling down a kayak. The victim did so and after completing that the offender suggested that they shower. The offender again led the victim to the shower room where they both undressed and got into the shower. The offender began to handle and fondle the victim’s penis while talking with him in the shower.

47. The Crown submits that the offending is above mid-range whereas Ms Mendes submits that the offending is just below mid-range. Given all of the circumstances the matter is mid-range, but towards the lower end of the mid-range.

48. I go now to sequence 3 involving CNB. At some time after these incidents the offender approached the victim’s mother about the victim accompanying him on a kayaking trip to the Murrumbidgee River. The victim’s mother was supportive of the idea. The victim was reluctant but did not want to disclose the previous conduct to his mother. The victim accompanied the offender on an overnight trip to the river. They paddled around the river in the kayak and set up camp on an island. They occupied the same tent, but different sleeping bags. During some conversation the offender reached over to inside the sleeping bag and took hold of the victim’s penis. The tone of the conversation changed to a sexual one.

49. The offender made a comment about his own penis and asked the victim to feel his (ie the offender’s) penis. The offender persisted and eventually the victim reluctantly used the top of his fingers to feel the top of the offender’s penis. The offender continued to fondle the victim’s penis for some time. The facts recite that the victim was frightened to say anything and that he was thinking of the remote location and was feeling vulnerable and helpless. At some point the offender asked the victim if he was asleep and there was no response at which point the offender removed his hand from the victim’s penis.

50. The offending to which sequence 3 relates continued for some time. Again, there is the age difference and the nature of the relationship of teacher and student. There was skin on skin contact and the victim was 13 years of age. The offender persuaded the victim to touch his penis. All of this occurred when the offender was caring for the victim and they were staying overnight in a remote location. The Crown submits that this falls above mid-range and Ms Mendes submits that the matter is just below mid-range. The matter in all of the circumstances is squarely within the mid-range.

51. Sequence 5 (noting there is no sequence 4) occurred immediately after sequence 3. The offender changed his body position and again put his hand into the victim’s sleeping bag, again taking hold of the victim’s penis. Without saying anything the offender began to masturbate the victim’s penis quite vigorously, while rubbing his body on the victim’s leg. The victim developed an erection and the offender continued until the victim ejaculated. The victim pretended to be asleep while this was occurring. The victim lay awake most of the night. The Crown submits this conduct is above mid-range whereas Ms Mendes on behalf of the offender submits that the offending is at the low end of the mid-range. The conduct occurred in an isolated area at night where the offender was caring for the victim. There was ejaculation and skin on skin contact. On the facts there was no force or coercion. The victim was 13 and the offender an adult male. The offending is in the upper end of mid-range.

52. Sequence 6 occurred during one of the occasions in 1969 when the offender had a conversation with the victim and explained that when he needed a pair of pants the tailor would ask, “What side do you dress”? At the time the offender held the victim’s penis and moved it to the side of the complainant’s leg while describing the potential positions of dress.

53. The facts do not make it clear as to whether this matter involved skin on skin contact or not. However, the facts do make it plain that this occurred during one of the other incidents. All of the other incidents involved the skin on skin contact and the facts recite that the offender held the victim’s penis. In these circumstances I proceed on the basis that I am satisfied it involved skin on skin contact. Again, there is the age and the respective positions of the offender and the accused. The matter is below mid-range

Matter involving BWG – H63936259

54. There is one matter involving the victim BWG, which is a charge of Indecent Assault Male. During the 1971 school year the victim, who was 13 or 14 at the time, accompanied the offender to an overnight camping trip to Victoria. After driving through Gerogery the offender parked on the side of the road. He then arranged the back area of the station wagon for sleeping. The victim went to the rear of the vehicle, got in and lay on the passenger’s side. While the victim was trying to get to sleep the offender began to rub the victim’s arm and then commenced to rub the victim’s leg. The victim was wondering what was happening and kept still. The offender then placed his hand under the victim’s clothing and rubbed his hand up and down on the victim’s penis for 15 to 30 seconds. The victim who was shocked and scared pushed the offender away and said, “no”. There was no further interaction between them.

55. The offender when interviewed denied touching BWG but agreed that if he made an advance on a boy and the boy said “No” he took the matter no further.

56. The touching was skin on skin when they were in a relatively isolated place in circumstances where the offender was caring for the victim who was 13 or 14 years of age. The touching did not go on for a lengthy period. Ms Mendes submits that the offending is at the upper end of the low range and the Crown submits that the offending is mid-range. Given the age of the victim, the nature of the offending and circumstances the matter is at the lower end of the mid-range.

Matters involving MJH – H62695211

57. MJH commenced High School at the Junee High School in 1973. During that year a different type of school timetable was implemented allowing essentially one day per fortnight for practical based classes including motor mechanics, leatherwork, model making and the like. One of the electives taken by the victim involved the restoration of old farm equipment, which was taught by the offender. The offender also taught the victim metalwork, which was a compulsory subject for all Year 7 boys. The offender took a liking to the victim and a friendship developed. As a result of this the victim accompanied the offender on a number of trips that involved overnight stays including interstate.

58. Sequence 2 is the offence first in time involving the victim MJH. During the latter part of 1974 the victim accompanied the offender on a trip during which they camped on the side of the road on the outskirts of Cooma. After dinner the two of them were in their respective sleeping bags, which were undone because of the hot weather. The offender reached into the victim’s sleeping bag and grabbed the victim’s penis and held onto it for a short time during which he continued to talk and joke.

59. As the Crown submits the victim was generally under the offender’s authority. The offending involved skin on skin contact where the two of them were in a relatively isolated area. The matter is slightly below mid-range.

60. The remaining two offences relating to MJH occurred at the home of the offender’s parents in Collaroy in Sydney, the offences occurring on consecutive days. The victim accompanied the offender on a trip to Sydney. They stayed at the home of the offender’s parents and shared a room in which there were two beds. The offender slept naked. On the first night after the victim had gone to bed the offender went to the bed in which the victim was, put his hand under the covers and masturbated the victim to ejaculation. The offender went back to his own bed. The offender and the victim visited a couple of places including a saw mill. This is the conduct to which sequence 3 relates.

61. The victim was 13 and the conduct involved skin on skin contact and the victim ejaculating. The victim was generally under the authority of the offender. The Crown submits the offending is above mid-range and Ms Mendes maintains that the matter is at the low end of the mid-range. The offending is squarely within the mid-range.

62. The night following the outing to the sawmill, the offender and victim returned to the home of the offender’s parents. They went to bed in separate beds. The victim started to fall asleep and was lying on his stomach. The offender got into bed with the victim. The offender got on top of the victim and the victim could feel the offender’s erect penis pushing against him. The offender inserted his penis into the victim’s anus. The victim kept his bottom muscles as tight as possible, but the offender kept pushing his erect penis inside the victim’s anus. The offender said a number of time, “[MJH], am I in you, am I in you”. The victim does not believe that the offender ejaculated. The facts recite that the victim hardly slept that night and that the following morning the victim felt tired and stressed. The offender ran a bath for the victim, who stayed crying in the bath for a long time as he was scared about what had occurred. That morning they drove back to Junee and they did not speak further about what had occurred.

63. The victim did not go on any further trips alone with the offender. The victim continued to do paid labouring jobs for the offender at the offender’s properties in Junee, but ensured others were always present.

64. As the Crown’s representative emphasised in her written submissions, the victim was 13 and the offender was 39. There can be no suggestion that the victim consented and, given what the facts recite about the victim keeping his bottom muscles as tight as he could, it must have been obvious to the offender that the victim was not consenting. There was no ejaculation. Given the age difference and the nature of the offending the matter is above mid-range.

65. The offender when interviewed on 2 September 2016 disclosed a number of offences against former students, one of whom is the victim MJH. The offender was again interviewed on 13 September 2016 during which interview he made certain admissions in relation to masturbating the victim.

Matters relating to PTH – H65548188

66. During 1978 PTH, through his older brother, was introduced to the offender. His brother was involved in restoration work at the offender’s residence. PTH commenced High School in 1979 during which year he took an elective metal work class taught by the offender. The victim enjoyed the work, which was noticed by the offender, who would occasionally invite the victim to stay back to continue to work on various projects. He was also given access to the metalwork room during lunch periods where he and the other boys would work on projects under the offender’s supervision. During the school year the offender approached the victim and offered him restoration work at his residence at $2 per hour. The victim’s parents gave permission. On one of the occasions the victim was working at the offender’s residence the offender invited the victim on a weekend trip to Victoria to attend a steam engine rally. Permission was sought and obtained from the victim’s parents.

67. During 1979 while the victim was aged 12 the victim and offender set off for Victoria, stopping north of Albury to camp the night. Later in the afternoon the offender drove down a bush trail. They had dinner around a camp fire. After dinner the victim changed into his pyjamas and was unsure where he would sleep. The offender informed the victim that he had set up a bed in the back of his station wagon. The victim went to bed leaving the offender at the camp fire.

68. The victim woke during the night and he felt the offender’s hand inside his (victim’s) pyjama pants, fondling his erect penis. The victim remained still and the offender stroked the victim’s penis. The facts recite that this was the victim’s first sexual encounter and he felt confused but stimulated by the offender’s actions. This is the conduct to which sequence 1 relates.

69. The matter involves skin on skin contact in circumstances where the victim was 12 and the offender was in his 40’s. The offence occurred in an isolated area where the offender was supposed to be caring for the victim. There was no force or coercion, but the victim was asleep immediately before the incident. Ms Mendes maintains the matter falls just below mid-range whereas the Crown submits that it is above mid-range. The matter is squarely within the mid-range noting the conduct and the circumstances.

70. Sequence 4, the other count relating to the victim PTH, is an offence of Attempted Buggery contrary to s 80 of the Crimes Act as it then was. This offence occurred on Good Friday in 1980 when the victim was 13.

71. The victim travelled with the offender to the offender’s parent’s home in Collaroy in Sydney. Shortly after eating dinner, the victim began to feel unwell and wanted to lie down. The victim was taken to a room within the house that had two single beds on either side of the room. The victim changed into his pyjamas and went to bed. The offender was also using this room.

72. During the night the victim woke after feeling hands on his waist and realising that his pyjama pants had been pulled down below his bottom. He was lying face down on the bed. The victim felt something being pushed at his anus from behind and quickly realised that it was the offender trying to insert his erect penis.

73. In an attempt to insert his erect penis the offender kept his hands on the victim’s waist and moved him backwards to the edge of the bed. As the offender attempted to insert his penis the victim squeezed his buttocks together in an attempt to stop the offender from inserting his erect penis. The offender continued and the victim yelled, “Stop”. The offender became frustrated with the victim and got off the bed. Not surprisingly, the facts recite that the victim was very scared and frightened and also that the victim rolled over and faced the wall where he lay crying and wanting to go home to his parents.

74. The attempted buggery involved some degree of force in that the offender kept his hands on the victim’s waist. The attempt involved persistent conduct in circumstances where the victim was resisting, which must have been obvious to the offender. There is again the significant age difference, noting that the victim was 13. The Crown submits that the offence is “comfortably above mid-range” and on behalf of the offender it is submitted that the conduct is upper end of mid-range. Noting the age of the victim and the circumstances of the offending, the matter is above mid-range.

66. By the end of second form, the victim stopped working for the accused and gained other part time work. The victim did not go on any other excursions with the offender and there no further sexual encounters.

67. In September 2016 the victim became aware that the offender was charged in respect of other victims and disclosed to family members. On 31 October 2016 the offender was spoken to and admitted the conduct in respect of the victim.

Matter involving CK – H225977797

77. The victim was again a student at the Junee High School and was taught by the offender. The offender began a friendship with the victim and as a result the victim was invited to the offender’s residence on a number of occasions.

78. In autumn 1981 the victim, who was 13 years and 9 months, was invited to go on a camping trip with the offender. Permission was granted by the victim’s parents. They went to Howlong in the offender’s station wagon. After setting up camp for the night the offender set up a bed in the back of the station wagon. While both were in the back of the station wagon the offender placed his hand inside the victim’s sleeping bag and began to rub the victim’s penis. The victim felt uncomfortable and said, “Don’t do that” after which the offender desisted. The victim demanded that he be taken home the next day, which occurred. He did not go on any further trips with the offender.

79. The conduct involved skin and skin contact which was momentary and stopped as soon as the victim told the offender not to do it. The offending occurred in an isolated area where the offender was caring for the victim. The victim was 13. Ms Mendes submits that the offending is at the upper end of the low range and the Crown submits that the matter is slightly below mid-range. The offending is below mid-range but not to a significant degree.

General comments re offending

80. That concludes the facts relating to each of the seven victims. It is appropriate now to make some general comments about the circumstances of the offending. It is tolerably plain from the facts that the offender was a relatively popular teacher at the Junee High School. It is also tolerably plain from some of the victim impact statements and some of the testimonial references tendered on behalf of the offender that he was a good teacher. There is very real force in the Crown’s submission that the offender engaged in grooming type behaviour and becoming involved with the students and going well beyond what would be ordinarily expected of a teacher including taking them camping and kayaking. In the circumstances of this case, noting the conduct of the offender and his manner of befriending the boys, taking them camping, taking them kayaking and the extra-curricular activities that went well beyond what would ever be expected, I am satisfied beyond reasonable doubt that the offender did engage in grooming behaviour.

81. On the facts before this court the offender between 1965 and 1981 - that is, for a period of 16 years, admittedly with some breaks in the offending - the offender used his position as a teacher to gain the trust of the victims and their parents. Moreover, he used his significant position of trust as a means of gaining a regular supply of and access to teenage boys for his own sexual gratification. Teaching is a noble profession. Those within that profession have an awesome responsibility. Those within that profession have the opportunity and indeed responsibility to nurture and encourage their students. They have the ability to shape young minds. Students should feel safe around teachers. To say that the offender grossly abused his position of trust is to very significantly understate the matter.

Criminal History

82. The offender was born on 9 September 1935 and is accordingly now 82 years of age. He was aged between 30 and 46 at the time of the offending. He has no criminal history. There is no suggestion of any offending post 1981.

83. This however, is not of the assistance to the offender that it might be in other cases. It was his persona as a respectable teacher that enabled him to gain the trust of the victims and their parents.

84. Ms Mendes submits on behalf of her client that some minor leniency can be extended to the offender because of his lack of record. The Crown makes comprehensive submissions on the issue of the prior good character. The Crown refers to a number of decisions including Ryan v The Queen (2001) 206 CLR 267, R v TWP [2006] NSWCCA 141 at [17] and Hermann v R (1988) 37 A Crim R 440.

85. In Ryan, McHugh J, who was part of the majority in allowing the appeal, at [35]-[37] said:

“Given these circumstances, Gleeson CJ was correct when he said that the appellant was not entitled to significant leniency because of his otherwise good character. However, Nield DCJ gave the appellant no leniency whatsoever for his otherwise good character. He was entitled to some leniency for his otherwise good character. That being so, the Court of Criminal Appeal should have allowed the appeal and re-sentenced the appellant. In re-sentencing the appellant, some weight should be given to the appellant's otherwise good character.

In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Second, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case.

In this case, once the offences before Nield DCJ and Rummery DCJ are excluded, the appellant was of otherwise good character. He was entitled to some leniency because of that good character.”

86. Kirby J, also part of the majority in Ryan said at [110]:

“…To ignore totally evidence relevant to the latter because of a general assessment that the appellant was not, globally speaking, a good man or had committed serious crimes, involves a departure from basic sentencing principle. Even in the case of offences against vulnerable children and young persons over an extended period, as here, a proper evaluation of all matters relevant to the sentencing function required that some weight be given to the evidence of character that stood to the appellant's credit. By dismissing that evidence out of hand, and refusing to give it any weight at all, the sentencing judge erred”.

87. The Crown is correct therefore to submit that it would be an error to allow no leniency for the offender’s lack of record. However, the preponderance of recent authority is such that the weight to be given to the prior lack of record is limited. Rothman J in delivering the decision of the court in R v TWP [2006] NSWCCA 141 at [16]-[17] said:

“There are a number of matters which need to be raised in relation to the sentence imposed and the remarks of the sentencing judge. The first is the reference to “previous good character”. The sentencing judge was here referring to the fact that, as at the date of sentencing, the respondent had no prior convictions. He was also referring to the references, mentioned above, provided on his behalf. The sentencing Judge seemingly took this into account to some large degree as he did the lack of a likelihood to re-offend. Each of these, no doubt, depends upon the report of the registered psychologist which was in evidence before his Honour and before this Court.

[17] The difficulty with this approach, in relation to offences of this kind is that, similar to most white-collar crime, the non-apprehension of the respondent (or his prior good behaviour) is almost a necessary condition to the commission of the crime. In circumstances where the respondent faces 17 offences of sexual assault on children spanning a period of almost 20 years, previous good behaviour is a factor which ought provide little weight in favour of the respondent”

General Deterrence

88. What follows under the headings of General Deterrence and Old Offending and Sentencing Practices at the time is essentially a repeat of what I said in my Remarks on Sentence in R v Madeley [2018] NSWDC 35 That matter was very similar in a number of respects to the matter under consideration, including that the offender was now 82, there were 7 victims and 22 counts of conduct going back decades.

89. The offender is now 82 years of age. For that reason and the fact that there has been no offending for 37 years, specific deterrence has little work to do within this sentencing exercise. However retribution and denunciation of the conduct are certainly matters to which appropriate weight will need to be given.

90. The court is dealing with old offending and general deterrence in the circumstances of this case does not achieve the same significance as with more recent offending, but that does not mean that it has no work to do within this matter. The strong need for general deterrence when dealing with offences of child sexual assault is undoubted. It goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at 179 where his Honour said:

“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said:

‘General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.’"

Old offending and sentencing practices at the time

91. As I indicated at the commencement of the sentencing hearing, the court is obliged to sentence in accordance with the sentencing practices and trends at the time of offending. This has the result in cases such as this of producing a sentence which is far more lenient than offenders could expect to receive if the offending was recent. I understand that the victims would be aware from what was said at the sentence hearing that the sentence to be imposed would not be as significant if the offending had been recent.

92. Since the offending on which this court is passing sentence has occurred, the law has changed dramatically so far as sexual offences against children are concerned. Maximum penalties have been significantly increased and further, for example, there are now specific offences that have an aggravated form either because of the age of the victim and/or the fact that the victim was under the offender’s authority.

93. There are a number of relevant authorities on the issue of sentencing the offender in accordance with the sentencing practices and trends at the time of the offending. These include R v Moon [2000] NSWCCA 534, AJB v R [2007] NSWCCA 51, PWB v R [2011] NSWCCA 84 and more recently Denham v R [2016] NSWCCA 309. I note the very helpful table annexed to the judgment of RS Hulme J in PWB v R.

94. Ms Mendes in her very helpful and comprehensive submissions (MFI 2 on sentence) refers to the decision of Magnuson v R [2013] NSWCCA 50. Button J (McCllellan CJ at CL, Bellew J agreeing) said at [82]-[90]:

“At the outset, I wish to emphasise that the following is a discussion of the imposition of appropriate sentences for sexual offences committed against children in the vicinity of three decades ago. My judgment says nothing about appropriate sentences for such offences committed today, or in the more recent past.

[83] Generally, I accept the propositions of counsel for the applicant. I consider that the following principles are established.

[84] It is true that, for over a decade, it has been clear that a sentencing judge dealing with very old offences must take into account the sentencing patterns that existed at the time of the offences: see R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; (2002) 130 A Crim R 481.

[85] If such a pattern is unable to be discerned, the judge should commence the sentencing process in the usual way; that is, by reference to the maximum penalty, and the place in the range of objective gravity occupied by the offence: see Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 at [66] - [71] per Howie J (with whom Fitzgerald JA agreed).

[86] Even if a sentencing judge does take an established sentencing pattern into account, a failure adequately to reflect the principle and the relevant sentencing pattern may cause the sentence to be manifestly excessive, or otherwise erroneous: see RWB v R[2008] NSWCCA 93; (2008) 184 A Crim R 453 at [24] - [26].

[87] If sentencing for offences committed at a time when the statutory ratio did not exist, sentencing judges should sentence in accordance with that fact: see AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32 at [36] - [37] and Rosenstrauss v R [2012] NSWCCA 25 at [16].

[88] Having said that, a court sentencing today with regard to old offences with regard to which a different sentencing pattern can be discerned must nevertheless bear in mind that, since 1974, it has been established that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice: Power v The Queen (1974) 131 CLR 623, referred to in AJB v R and many subsequent cases dealing with the principle under discussion.

[89] Finally, in appeals to this Court, reduction has not been automatic, even if it is determined that the sentencing judge failed to advert to the principle: see, for example, Mottram v R [2009] NSWCCA 210 and RLS v R [2012] NSWCCA 236.

[90] Applying those principles to this case, I consider that a sentencing pattern with regard to sexual offences committed against children in the late 1970s and early 1980s can be established. That is founded upon five factors. The first is the statistics that were before her Honour and this Court relating to disposition of offences in 1976 and 1978. The second is summaries of cases. Some were provided by the parties to her Honour. Others are contained in other decisions of this Court dealing with this question. The third is the general increase in sentences that has occurred across the board in New South Wales over the past quarter century. The fourth is the upward movement in maximum penalties with regard to the crimes of the applicant between the period under consideration and today. The fifth is judicial memory. I shall deal with each of those factors in turn."

95. Judicial memory is no longer considered a reliable factor in determining the sentencing trends at the time – see MC v R [2017] NSWCCA 316.

96. One of the difficulties in sentencing for conduct such as in this matter in accordance with the sentencing trends at the time of the offending is that very little of this type of offending was reported at the time. As much appears to have been recognised by the Court of Criminal Appeal in Denham. In the matter presently under consideration I have not been able to discern any particular sentencing trends applicable to the offending in respect of which sentence is being passed. In these circumstances, I note the judgment of Howie J in Moon at [69]-[71]:

“A pattern of sentencing, if available, will also indicate the range of appropriate sentence for the type of conduct under consideration. But this pattern will reflect "the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature" : Oliver, above, at 177

[70] The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

[71]   When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time.”

97. Further, one of the many complicating factors of dealing with the matter in accordance with sentencing trends at the time was the remissions system that applied before the commencement of the Sentencing Act, 1989. It is tolerably plain from the decisions of Moon and AJB that this requires a very generous finding of special circumstances where the non-parole period is between 35% and 50% of the total sentence. This is one of many factors that may lead the community in general and the victims in particular to conclude that the court has not imposed an adequate sentence on this offender. However, this court is obliged to follow the precedents set by the appellate courts.

98. Further, the offender is entitled to a numerical discount in respect of his pleas of guilty. At the time of the offending, although a plea of guilty was always taken into account, the numerical value of the plea of guilty was never actually stated in the course of the remarks on sentence.

Accumulation and Totality

99. The issue of dealing with the matter in accordance with prevailing sentencing trends at the time of the offending conveniently leads to the issue of accumulation and totality. I indicated at the sentence hearing that I propose to impose an aggregate sentence. Neither party opposed that course. Sentencing trends at the time of the offending included a much greater degree of concurrency, particularly in circumstances where a series or number of offences arose out of the one ongoing episode of offending.

100. However, while I maintain that the imposition of an aggregate sentence is appropriate, if separate sentences were to be imposed there would need to be some meaningful but partial accumulation of sentence to recognise that the court is dealing with offending against seven different victims over a period of approximately 16 years, albeit with breaks in the offending. The offending against CG involved six different episodes of offending. The matters involving SLB involve four separate episodes of offending. The matters involving CNB involve 3 separate episodes of offending. In respect of the victims BWG and CK there is one offence in respect of each victim. In respect of MJH there are 2 episodes of offending, which is also the situation for the matters involving the victim PTH. I accept that given the sentencing trends that prevailed at the time of the offending, there would be a greater degree of concurrency of sentence than would be appropriate with multiple recent offending.

101. On this issue of accumulation and concurrency of sentences Howie J in Cahyadi v R, (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] said:

“In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

102. It seems to me, with unfeigned respect, that this is no different in practical terms to what was said by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260, namely,

“The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

103. I have referred to Holder because 1983 is much closer in time to the time frame of some of the criminality in the matter presently under consideration.

Victim Impact Statements

104. The victims SLB and MJH read their victim impact statements to the court. Those statements are Exhibits D and F on sentence respectively. In addition, the court has received victim impact statements from SLB (exhibit C), BG (exhibit B) and PTH (exhibit E). I sincerely hope that the offender listened carefully to the statements of SLB and MJH and that he has read and considered the other victim impact statements.

105. Those victim impact statements speak eloquently of the short and long term harm caused by the offending of the type for which the offender appears for sentence. Those statements show that the effects on the victims are exactly as one would expect. Further, the victim impact statements from MJH and PTH show clearly that the offender was an effective teacher who was able to impart life-long skills to his students. It is also tolerably plain from reading those statements how the offender used his position as a trusted teacher to gain access to and groom the students he selected as his victims.

106. The impact on the victims is one of the many factors that is considered in the instinctive synthesis process of determining the appropriate sentence, see for example s 3A(g) of the Crimes (Sentencing Procedure) Act 1999. While I have no difficulty whatsoever accepting the long term effects as stated in those victim impact statements, the law is quite clear. In the absence of any other material and given the decision of the Court of Criminal Appeal in Tuala [2015] NSWCCA 8 I cannot find beyond reasonable doubt for the purpose of sentence that any of the victims has suffered substantial emotional harm within the meaning of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. Be that as it may, as I have made plain the effects on the victim are required to be taken into account pursuant to s 3A(g) of the Crimes (Sentencing Procedure) Act.

Assistance

107. The offending against MJH only became known because of admissions made by the offender to investigators. After the conduct was admitted MJH was approached and gave an account of the offending conduct. Ms Mendes submits (paragraph 60 of MFI 2) that “some meaningful reduction should be made on account of the offender’s voluntary disclosure”. Section 23 of the Crimes (Sentencing Procedure) Act, 1999 is relied upon. The Crown accepts that there should be some consideration extended to the offender because of this assistance. Ms Mendes submitted that the combined discount for the plea of guilty and assistance in respect of the offences involving MJH should be in the order of 35% to 40%.

108. A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence: Section 23 of the Crimes (Sentencing Procedure) Act:

The matters noted in s 23(2) Crimes (Sentencing Procedure) Act 1999 (NSW) must be considered:

“(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender’s assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence”

Section 23(3) “A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.”

Section 23(4) “A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:

(a)   indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b)   state the penalty that it would otherwise have imposed, and

(c)   where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. “

109. The assistance was significant and useful in that it brought serious offending to light. I note the statement of facts so far as MJH is concerned. It is not suggested that the assistance was other than truthful, complete and reliable. The extent of the assistance is revealing otherwise unknown offending in the course of what must have been a relatively lengthy ongoing investigation. The assistance was also therefore timely. The only benefit that the offender will gain is the discount for the assistance. There is no evidence upon which I could find that the offender will suffer harsher custodial conditions as a result of the assistance. There is no issue of injury suffered by the offender or his family or any risk of injury or danger to the offender or his family as a result of the assistance. The assistance related to offending unrelated to the other matters being investigated, but nevertheless formed part of the ongoing course of conduct of the offender towards teenage boys. All of the consideration extended to the offender for assistance must be for past assistance.

110. I did not understand the Crown to oppose a finding that the offender was entitled to consideration for assistance. At the sentence hearing I indicated that I was prepared to extend a total discount of 35% to the offender, 25% for the plea and a further 10% for past assistance. Since the sentence hearing I have reviewed the decisions of R v Sukkar [2006] NSWCCA 92, SZ v The Queen [2007] NSWCCA 19 and R v AD [2008] NSWCCA 289 I am of the opinion that the combined discount to the offender for the plea of guilty and assistance should be as I have indicated, ie 35%.

Subjective case

111. There was no oral evidence called from or on behalf of the offender. The defence tender bundle, exhibit 1 on sentence, contains a Forensic Psychiatric Report prepared by Dr Andrew Ellis dated 25 February 2018, a Neuropsychological report by Dr Peter Ashkar dated 5 March 2018 and five testimonials.

112. The two reports both set out that the offender is a retired teacher, 82 years of age who retired from work in the early 1990’s – in 1994 according to Dr Ellis and 1992 according to Dr Ashkar. The offender worked initially at Meadowbank Boys High School for a short period of time and spent about thirty years teaching at Junee High School. The offender is visited occasionally by members of his extended family

113. At p 3 of his report Dr Ellis sets out that the offender says that his mood is “terrified”, he is dreading the sentencing outcome and wonders if he will get out of prison before he dies. Dr Ashkar sets out similar matters at p 6 of his report, where he says that the offender expressed concern and feelings of anxiety associated with his legal situation and the prospect of dying in gaol in the event of a lengthy gaol sentence.

114. Ms Mendes addressed these issues at paragraphs 72 – 75 of her written submissions, MFI 2. The submission is made, appropriately, that each year of a sentence of imprisonment may represent a substantial proportion of the life left of this offender. It is also submitted (paragraph 75) that:

“Prison is a nasty place at the best of times. It is a place for young men, not for 82 year old men with no criminal history. It will be more onerous for him that it would be if he were younger: R v Holyoak (1995) 82 A Crim R 502 at 507. The offender has been held in protective custody and is released from his cell between 8:30am and 3:30pm. He has thus far not had access to work, education or other treatment programs”.

115. As I understood the oral submissions made at the sentence hearing, it was submitted on behalf of the offender that the court should not impose a crushing sentence but impose a sentence that gave the offender some hope for some time in the community at the expiration of the non-parole period. Undoubtedly, common humanity would dictate this be the case, but humanity is but one of many factors, between which there is considerable tension in the sentencing process.

116. There is no principle that the offender should not be sentenced to a term that would result in him spending the rest of his life in gaol. One of the cases usually cited as authority for that proposition is Holyoak v The Queen (1995) 82 A Crim R 502, the same decision upon which Ms Mendes relies. I accept that the non-parole period that I will be imposing in this matter may well have the practical result of the offender spending the remainder of his life in custody.

117. Dr Ellis opines (p 7) that the offender does not present with a major mental illness. He goes on to opine (p 7) that the offender “would make diagnostic criteria for the paraphilic disorder paedophilia”. Dr Ellis says that this is a chronic and relapsing condition. At p 5 Dr Ellis sets out that the offender gave a history of being sexually attracted to boys from the age of 14 and that the offender said that his (offender’s) interest evolved from that age.

118. The court was urged on behalf of the offender to make a finding that the offender is remorseful. The Crown resists a finding that the offender is remorseful essentially on the basis that the offender has made out the second limb within s 21A(3)(i). The offender did not give evidence. Ms Mendes sets out the matters upon she relies for a finding of remorse at para 63 of MFI 2. In summary those are the pleas of guilty, the admissions to police in respect of some of the victims, the voluntary admission of conduct relating to MJH, and the hearsay accounts of remorse contained in the reports. Counsel for the offender relied upon [160] of the judgment of RA Hulme J in R v Van Ryn [2016] NSWCCA 1, namely:

“Despite the respondent's earlier reticence to fully acknowledge the harm he had caused his victims, towards the end of his evidence he said that he understood the long term consequences of such offences. It was open to the judge to accept that on the balance of probabilities this made good the second limb of the mitigating factor in s 21A(3)(i).”

119. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides:

“The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

…

…   

the remorse shown by the offender for the offence, but only if:

(i)  the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),”

120. The following appears in Dr Ellis’ report (at p 6):

“He said that he was likely motivated into the offences by his sexual attraction. He said that he also thought about the boys as friends. He said that they kept coming back to see him and he was ‘lulled into a false sense of security’ that his behaviour was wanted by the victims. Just as he was unsure why he engaged in the behaviour he was also unsure as to why the behaviour stopped after 1981 as he continued to work in the school around children.

He says that he is aware that the victims say they have been distressed”.

121. At the bottom of p 6 of the same report the following appears:

“He reported long standing fantasies and urges directed towards pubescent boys. He indicated that these were no longer current however he still had an interest in and fondness for children. He showed an impoverished insight into his motivations for offending, however was agreeable to treatment and risk management suggestions put to him”.

122. Under the heading “Mental State at Material Time” the following appears at pp. 6-7 of the report:

“His (offender’s) report of his actions and the description of them are typical for a person with paedophilia and the related sexual attraction to youthful boys, hebephilia. Physical sexual arousal to young boys is present, and is the likely driver and motivator of the behaviour. Typical cognitive distortions were present that justified initiating and ongoing sexual activity with the boys (that his interest was in the welfare of the children, and that they were not harmed and wanted the activity…)”

123. At p 8 Dr Ellis opines that the offender will further benefit from professional support regarding attitudes to offending and the effects on victims.

124. The following appears at paragraph 8 and 9 of the report of Dr Ashkar:

“Mr Doherty understood the nature of the charges and he reported intact memory of his behaviour for the most part (there were counts he could not recall but he accepted that he had engaged in sexual activity with all the boys involved). He explained that he was sexually attracted to boys and acted on this attraction. ‘I liked these boys…it was lust’. He held the distorted view that several of the boys were his friends and consenting participants: ‘CG and SB freely came with me on several trips…In many cases, it went both ways, especially with CG…It honestly never occurred to me that these kids were under any distress…They were friends…I was friends with hem….I took them on trips and those sorts of things…I never dreamed that I was causing distress’.

Mr Doherty demonstrated regret for the distress he had caused the boys involved: ‘I never meant to harm any of them…I am sorry it upset them…I had no idea that it would…I suppose that was naïve…I’m just sorry they feel this way…That they’ve found that they’ve been so terribly wronged…I didn’t mean to harm them…I feel sorry for what has happened, that I’ve upset them…I never intended for it to affect their life…It was never my intention to hurt anyone in any way…I deeply regret that that has happened…I never wished to hurt anybody in all my life’.”

125. Under the heading “Summary and Opinion” Dr Ashkar sets out at para 16:

“Mr Doherty’s offences are particularly notable for the distortions in his thinking, (e.g. he considered the boys to be his friends and to be willing participants) and his failure to appreciate the moral and ethical issues underpinning the illegality of his offending behaviour (e.g. overstepping of professional boundaries as a teacher, power imbalance between adolescents and adults, potential psychological harm caused to the boys and their parents). It will be important for him to participate in offence specific treatment to correct the distortions in his thinking and his lack of moral understanding and judgment”.

126. As I have already indicated, the offender did not give evidence. I accept that it is not essential that an offender give evidence before a finding of remorse can be made. On the totality of the material from the medical experts for the purpose of sentence I am prepared to accept on balance that he has accepted responsibility. I observe however that on one view that acceptance was almost grudging. However, it is my very firm view that the offender has not acknowledged the injury loss and damage caused by his offending. Accordingly, I decline to find on balance that the offender is remorseful.

127. The offender has no other criminal history. The offending ceased in 1981 and the offender continued to teach for a number of years thereafter. The last offence was some 37 years ago. The offender is now 82 and as counsel for the offender submits there have been no breaches of prison discipline.

128. At p 11 of his report Dr Ashkar sets out:

“Assessment of Mr Doherty’s risk of sexual recidivism produced a total score of ‘0’ which placed him in the below average risk category for being charged with or convicted of another sexual offence”.

129. Given these factors I am satisfied on balance that the offender is unlikely to re-offend and further that there are good prospects of rehabilitation. In respect of the issue of rehabilitation I note from the various testimonial references that there are people in the community willing to assist the offender upon his release.

130. Further on the issue of being unlikely to re-offend I also note the report of Dr Ellis where he says at p 6, “He says that the deterrent of going to prison would stop him doing this kind of behaviour again in the future”. The offender indicated to Dr Ellis that he would be prepared to undertake any course of treatment or counselling. This goes to both the issue of rehabilitation and being unlikely to re-offend.

131. Ms Mendes submits at paragraph 69 of MFI 2 on behalf of the offender that given the offender’s age, custody is likely to be more onerous. I accept that as the offender is 82 years of age that prison will be more onerous. Beyond the offender’s age there is the issue of the offender’s medical conditions set out in the reports of Doctors Ellis and Ashkar. The offender suffers from high blood pressure, an enlarged aorta or abdominal aortic aneurysm, osteoarthritis, fluid retention and cramps. There are all relevant matters to take into account in the subjective case.

132. It is submitted on behalf of the offender – see paragraphs 68-70 of MFI 2 - that the offender is entitled to some consideration for delay. This is an area where I should be cautious of doubling counting, noting that the offender must be sentenced in accordance with appropriate sentencing practices and trends at the time of the offending. It is accepted that the sentences that will be imposed are less than what the sentences would be if the offending was recent.

133. Further, it is appropriate to note that there was no real delay between the victims coming forward and the charging. Ms Mendes relies on Todd v R [1982] 2 NSWLR 517 at 519 where Street CJ said:

“Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner”.

134. Allen J in Holyoak at 508 (Handley JA generally agreeing, Hulme J apparently not deciding this issue) said:

“Whether, in any particular case, so long a delay is a detriment depends upon the circumstances of that case. There is no rule of law that it always is a detriment — although often it will be. It could be, to take a case at one extreme, that the offender has spent years in emotional hell, appalled at what he has done, terrified that the day may come when he is found out, disgraced and convicted, fearing that at any time there will be that knock on the door and never feeling free to remain so long in any community that he comes to be known and his background be of interest to others. At the other extreme the offender may have gone through the years untroubled by his offences, lacking any remorse in respect of them and feeling confident that they will never come to light because the victim never would be prepared to talk about them, his confidence increasing as the years went by with his victim remaining silent — the offender enjoying over the many years unwarranted acceptance by his associates in his respectable and stable lifestyle.”

135. However, Barr J (Buddin & Campbell JJ agreeing) in Humphries [2004] NSWCCA 370 said at [19]-[20]:

“Although a lengthy delay between finding and charging can be taken into account in favour of an offender, there is no rule that that must happen. Each case depends on its own facts. There is no rule of law that delay is always a detriment to the offender, though it often will be: R v Holyoak (1995) 82 A Crim R 502 at 508.

One of the incidents of a lengthy delay can be that the offender is left in an agony of mind, not knowing whether or not he will be charged. The applicant was not put into any such frame of mind. He was able confidently to rely, until the police were finally told, upon the complainant’s not telling the police, in accordance with the understanding he believed had been reached [among the family].”

136. Latham J (Hidden & Adamson JJ agreeing) reviewed a number of authorities relating to the issue of delay in R v Donald [2013] NSWCCA 238 at [28]-[57]. Her Honour at [49] said:

“…I am not aware of any authority in this State that has endorsed such an approach to the sentencing of an offender, where the absence of a satisfactory explanation for the delay leads to the conclusion that the prosecution has been ‘dilatory or neglectful’. Overwhelmingly, the focus is on the consequences of the delay to the offender, no matter what the explanation for it.’”

137. In all of the circumstances I am firmly of the opinion that the issue of delay has very little impact on the sentence to be imposed in this matter.

138. I have carefully read and considered each of the testimonial references contained within Exhibit 1. Some of the testimonials are from past students of the offender, who express surprise that he engaged in the type of conduct that brings him before the court. Further, those students speak well of the offender as a teacher, as do some of the victims in their victim impact statements. I have already referred to the community support that the offender will have upon his eventual release.

General Remarks

139. The court is extremely grateful to the representatives of the parties for the obvious care and time taken in the preparation of this matter and in particular the careful, comprehensive and helpful written submissions that are contained within MFI 1 and MFI 2. I have dealt with the various submissions in dealing with the issues within these remarks on sentence.

140. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

141. Section 5 provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives that no other sentence is appropriate. Clearly in this matter, given the multiplicity of the offending, the type of offending and the maximum penalties, there must be a sentence of imprisonment. No contrary submission was made. Clearly that imprisonment must be full time custody. The matters involving MJH have a discount of 35% applied for reasons already given within these reasons.

142. The parties agree that the sentence should commence from 1 December 2016.

143. I remain of the opinion that it is appropriate to deal with this matter by way of an aggregate sentence. I have set out a table in which the number of the count, a summary of the conduct to which that count relates, the maximum penalty and the total sentence that would have been imposed had separate sentences been imposed. Many of the sentence that would have been imposed had separate sentences been imposed involve some minor rounding down in favour of the offender.

Matters involving CG – H62322115

Victim born 24.6.1950

Seq	Offence	Description	Maximum Penalty	Indicative sentence
1	Indecent Assault Male – s 81 Crimes Act 25.4.1965	Anzac Day – hand in sleeping bag and grabs complainant’s penis Complainant 14 years and 10 months	5 years imprisonment	13 months (starting point 18 months)
2	Indecent Assault Male – s 81 Crimes Act 25.4.65-31.12.69	Shower after putting kayaks away – offender grabs complainant’s penis in shower while both showering Aged 14-19	5 years imprisonment	13 months (starting point 18 months)
3	Indecent Assault Male – s 81 Crimes Act 25.4.65-31.12.69	Different occasion in shower. Offender masturbates complaint to ejaculation in shower. Aged 14-19	5 years imprisonment	18 months (starting point 2 years)
4	Buggery – s 79 Crimes Act 1.1.66-31.12.69	After squash. Offender penetrates complainant’s anus with his penis in rear of station wagon. Hair cream used as lubricant Aged 15-19	14 years imprisonment	4 years 10 months (starting point 6.5 years)

5	Buggery – s 79 Crimes Act 1.1.66-31.12.69	Offender anally penetrated complainant in rear of station wagon – Gundagai Road – not isolated incident Aged 15-19	14 years imprisonment	2 years 6 months (starting point 3.5 years)
6	Buggery – s 79 Crimes Act 1.1.68-21.12.69	Complainant aged 17-19 – Offender anally penetrates complainant while camping near Bethungra	14 years imprisonment	2 years 3 months (starting point 3 years)

Matters involving SLB – H61592215

Victim born 12.9.1953

1	Buggery – s 79 Crimes Act 1.9.66-31.12.66	Shortly after victim’s 13th birthday – camping trip – rear of station wagon. Offender removes sleeping bag and underpants and anally penetrates victim using lubricant Aged 13-14	14 years imprisonment	5 years 3 months (starting point 7 years)
2	Buggery – s 79 Crimes Act 1.1.67 – 30.6.67	After canoe taken on maiden voyage. Offender places hand inside victim’s Speedos then rolls them down and anally penetrates victim. Aged 13-14	14 years imprisonment	5 years 3 months (starting point 7 years)
3	Buggery – s 79 Crimes Act 1.1.68-31.12.68	When returning from playing squash in Temora. Drove to quiet lane held victim down and anally penetrated victim Aged 14-15	14 years imprisonment	5 years 7 months (starting point 7.5 ears)
4	Indecent Assault Male over 14– s 81 Crimes Act 1.1.71-31.12.71	Visit by offender to victim who was injured after bike accident. Victim goes to offender’s parent’s residence in Collaroy. Victim wearing cast. Offender pulls down victim’s pants and fellates him to ejaculation	5 years imprisonment	22 months (starting point 2.5 years)

Matters involving CNB – H550654691

Victim born 24.4.1956

1	Indecent Assault Male – s 81 Crimes Act 1.1.69-31.12.69	Offender persuades victim to have shower at school. Both showering when offender grabs victim’s penis while talking to him Aged 13-14	5 years imprisonment	13 months (starting point 18 months)
2	Indecent Assault Male – s 81 Crimes Act 1.1.69-31.12.69	Offender persuades victim to have shower after pulling kayak from rack. Fondles victim’s penis while both showering	5 years imprisonment	13 months (starting point 18 months)
3	Indecent Assault Male – s 81 Crimes Act 1.1.69-31.12.69	On overnight kayaking trip on Murrumbidgee River. Fondles victim’s penis while in sleeping bag. Offender persuades victim to grab offender’s penis Aged 13-14	5 years imprisonment	1 year 8 months (starting point 2 years 3 months)
5	Indecent Assault Male – s 81 Crimes Act 1.1.69-31.12.69	Immediately after sequence 3 (above). Offender masturbates victim to ejaculation Aged 13-14	5 years imprisonment	1 year 10 months (starting point 2.5 years)
6	Indecent Assault Male – s 81 Crimes Act 1.1.69-31.12.69	During one of occasions to which other sequences relate – holds victim’s penis and moves it in course of discussion about tailors	5 years imprisonment	9 months (starting point 12 months)

Matter involving BWG – H63936259

Victim born 9.7.1957

1 Indecent Assault Male – s 81 Crimes Act 1.1.71-31.12.71 On overnight trip. Stop near Albury. Both in rear of station wagon. Rubs victim’s penis under clothing Aged 13-14 5 years imprisonment 13 months (starting point 18 months)

Matter involving MJH – H62695211

Victim born 2.12.1960

1	Buggery – s 79 Crimes Act 1.7.74-1.12.74	Third offence in time – occurred during same trip to offender’s parent’s house as sequence 3. Shared room with separate beds. Offender gets into the bed on top of victim and anally penetrates victim. Victim resisting. No ejaculation Aged 13-14	14 years imprisonment	5 years 2 months (starting point 8 years, minus 35%) Without assistance indicative sentence would be 6 years)
2	Indecent Assault Male – s 81 Crimes Act 1.7.74-.1.12.74	First offence in time involving MJH. On camping trip near Cooma. Both in sleeping bags. Offender grabs victim’s penis under sleeping bag and under clothing Aged 13	5 years imprisonment	11 months (starting point 18 months minus 35%). Without assistance indicative sentence would be 13 months
3	Indecent Assault Male – s 81 Crimes Act 1.7.74-1.12.74	Latter part 1974 with offender at offender’s parent’s home in Collaroy. Masturbates victim to ejaculation in bed in shared room.	5 years imprisonment	1 year 6 months (starting point 2.5 years, minus 35%). Without assistance indicative sentence would be 1 year 10 months

Matters involving PTH – H65548188

Victim born 11.1.1967

1	Indecent Assault Male – s 81 Crimes Act 1.1.79-31.12.79	Overnight trip – stop near Albury. Both sleep in rear of station wagon. Victim wakes to find offender fondling victim’s erect penis under sleeping bag and clothing Aged 12	5 years imprisonment	13 months (starting point 18 months)
4	Attempt Buggery – s 79 Crimes Act 4.4.80	Good Friday 1980. At offender’s parent’s home in Collaroy. Wakes to find offender attempting to anally penetrate Aged 13	5 years imprisonment	2 years 6 months (starting point 3.5 years)

Matter involving CK – H225977797

Victim born 10.8.1967

1 Indecent Assault Male – s 81 Crimes Act 1.3.81-31.5.81 On camping trip. Occurred in back of station wagon. Offender puts hand inside sleeping bag and pants and rubs victim’s penis. Victim says, “Don’t do that”. Aged 13 5 years imprisonment 13 months (starting point 18 months)

Orders

144. In respect of each of the matters to which the offender has pleaded guilty he is convicted.

145. The offender is sentenced to an aggregate sentence of 18 years 9 months imprisonment with a non-parole period of 8 years and 6 months. The non-parole period will commence on 1 December 2016 and will expire on 31 May 2025. The period on parole of 10 years and 3 months will commence on 1 June 2025 and expire on 31 August 2035.

146. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

147. The non-parole period is approximately 46% of the total sentence. The reason for the very significant finding of special circumstances has been enunciated within these reasons.

148. In an attempt to comply with s 23 of the Crimes (Sentencing Procedure) Act, the total sentence without the issue of assistance would have been 19.5 years. This makes due allowance for issues of totality.

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Amendments

07 June 2018 - Surname first, for easier searching.

Decision last updated: 07 June 2018