R v Douglas

[2021] NSWDC 646

District Court

New South Wales

Medium Neutral Citation:

R v Douglas [2021] NSWDC 646

Hearing dates:

21/4/21-24/5/21, 30/6/21, 11/8/21

Date of orders:

11/8/21

Decision date:

11 August 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 9 years with a NPP of 6 years (22/10/19-21/10/25). I find special circumstances.

The indicative sentences are:

Count 1 (Indecent assault) – 12 months

Count 2 (Indecent assault) – 18 months

Count 3 (Indecent assault) – 18 months

Count 4 (Sexual intercourse without consent) – 3 years with NPP 2 years

Count 5 (Sexual intercourse without consent) – 3 years with NPP 2 years

Count 6 (Sexual intercourse without consent) – 2 years 10 months with NPP 22 months

Count 9 (Sexual touching without consent) – 18 months

Count 10 (Sexual touching without consent) – 18 months

Count 11 (Sexual touching without consent) – 18 months

Count 12 (Sexual intercourse without consent) – 3 years with NPP 2 years

Count 13 (Sexual touching without consent) – 12 months

Count 14 (Sexual touching without consent) – 14 months

Count 15 (Sexual touching without consent) – 18 months

Catchwords:

Crime – Sentence – Indecent Assault – Sexual intercourse without consent – Sexual touching without consent

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Baines v R [2016] NSWCCA 132

Jonson v R [2016] NSWCCA 286

Mol v R [2017] NSWCCA 76

R v Porteous [2003] NSWCCA 18

R v Qin [2008] NSWCCA 189

Salmond v R [2010] NSWCCA 141

Category:

Sentence

Parties:

NSW DPP – Crown
Gregory Richard Douglas - Offender

Representation:

Mr A Robertson for Crown
Mr A Norrie for Offender

File Number(s):

2019/330998, 2019/384636, 2019/384639, 2019/384645

Publication restriction:

Non-publication order in relation to the identities of the complainants. The names of the complainants are anonymised.

sentence

1. The offender, Gregory Douglas, stood trial before a jury from 21 April 2021, on an indictment with 15 charges. On 24 May 2021, the jury found Mr Douglas guilty of all counts other than counts 7 and 8.

2. Today he must be sentenced in relation to the following offences: Three counts of indecent assault, the maximum penalty for which is imprisonment for five years; six counts of sexual touching, the maximum penalty for which is also five years imprisonment; and four counts of sexual intercourse without consent. The maximum penalty for that type of offence is 14 years imprisonment and a standard non-parole period of seven years is specified.

3. The maximum penalties and any applicable standard non-parole period are, of course, important guideposts in the sentencing exercise to which I have had regard.

4. In sentencing Mr Douglas, I must make findings as to the relevant facts, which must be consistent with the jury verdicts. Any aggravating matters must be proved beyond reasonable doubt and matters in mitigation proved on the balance of probabilities.

FACTS

5. The Crown written submissions on sentence provided a suggested version of the facts, taken from the transcript of evidence given by the various complainants. Counsel for Mr Douglas accepted that the Crown submissions were an accurate rendition of the evidence but argued that I should disregard certain parts of that evidence which went to matters beyond the offences.

6. I have adopted that approach and I have limited my factual findings to matters essential to the criminal conduct constituting each offence, together with any background matters essential to an understanding of the context and circumstances in which the offences occurred.

7. I find the following facts:

8. At the time of the offences the offender operated a horse stud farm on a property at Peelwood, which is located between Bathurst and Goulburn in New South Wales. The property was isolated geographically and there was no public transport and no mobile phone reception, although there was an internet connection.

9. While the offender was mainly responsible for the running of the farm and the various activities involved, he would, from time to time, be assisted by volunteer workers, both female and male, who would be provided with food and accommodation in exchange for performing work. These volunteer workers were referred to the offender through two organisations, namely Willing Workers On Organic Farms, which was known in the trial as “WWOOF” and another organisation named American Institute for Foreign Studies, which was known by the initials AIFS.

10. The offender lived in a farmhouse on the property which contained four bedrooms, one or more of which would be occupied by volunteer workers when staying at the property. Many of the workers accepted by the offender came from outside Australia and I note that of the five complainants who are the subject of the offences, all but one were from overseas.

11. Counts 1, 2 and 3 relate to the complainant whose initials are SS. Each of those counts involved an offence of indecent assault under s 61L of the Crimes Act 1900.

12. SS was born in November 1986. When she arrived at the offender’s farm in July 2014, she was 27 years of age. She came to Australia from Japan on a working holiday visa, arriving on 18 January 2014. After studying English for about four months, in July 2014 she registered with the WWOOF organisation and applied to work on the offender’s farm. On 30 July 2014 she travelled to Bathurst by train and was picked up by the offender at the railway station.

13. The offender then drove her to the farm, where she noticed that her mobile phone no longer had signal. Upon arrival, the offender showed SS around the farm and the next day she started work, which included feeding chickens, removing horse manure, loading hay onto a truck, and feeding the horses.

14. Soon after she commenced work on the farm, the offender asked SS whether she had any muscle pain. When she said she was tired and did have some muscle pain, the offender took hold of her arm and began massaging it, saying, “I’ll give you a massage when we get back”, or words to that effect.

15. SS told the offender that she did not need a massage and could do it herself. However, the offender persisted in wanting to give her a massage and, on a day somewhere between 25 and 28 August 2014, she complied with his instruction to come back into the room wearing only a towel, bra and underpants. After this, the offender applied oil to her neck and shoulders. While she was laying face down and after getting her to turn over, he rubbed in a circular motion from her armpits all the way to her breasts, where he massaged extensively. As SS had no muscle aches in her breasts, she told the offender words to the effect of “I do not need it, I do not want it.”

16. After this, the offender massaged other parts of her body and essentially her whole body, other than her groin, nipples and anus. Understandably, she felt very uncomfortable and, as she said in evidence, was disgusted by what was happening.

17. These are the factual matters on which count 1, involving the touching the upper part of the breasts, is based.

18. On another occasion, which also took place between 25 and 28 August 2014, the offender told SS that he wanted her to massage his shoulders and neck, which she did. After that, he said, “Now I will massage you.” Although she resisted, saying, “I’m fine”, the offender persisted. At the time, SS was wearing a trainer top and a camisole. Although she told the offender to do the massage over her clothes, he took off her trainer top and, using oil, massaged her neck and shoulders. He then told her to lie down and she lay on her back in the living room. SS knew that she was the only person in the house and, therefore, felt she could not call out for help and thought she must obey the offender.

19. The offender massaged her torso and he then said her buttocks and legs were tight and needed a massage and took off her pants, leaving her underpants on. The offender then applied oil and massaged close to her genitals and very close to her anus, leading to SS say, “Please stop, I don’t want it” and trying to brush away his hand. This massage lasted about 20 to 30 minutes. This offence in count 2, however, involved the indecent assault by touching close to the complainant’s genitals and anus.

20. There were, as the offender agreed in his evidence before the jury, many occasions on which he massaged SS, and although she kept refusing, the offender kept insisting, such that the massages became almost a nightly routine. Although SS did not want to be massaged, she felt she had to obey the offender because she was working for her visa and felt that she could not call anyone for help and could not escape.

21. The fact that there were many massages is not a matter that I treat as part of the offending or as aggravating any of the offences. The regularity of the massages provides relevant context, however, and explains, to some extent, why SS had difficulties in recalling the order of the offending in counts 1, 2 and 3 and also helps explain why she gave in to the pressure exerted by the offender to accept massages that she did not want.

22. SS remained at the farm for 88 days in total. Toward the end of her stay, a male friend of the offender was staying at the farm and, during this time, the massages continued, but in the bedroom occupied by SS. On one of these occasions, which is the offence in count 3, she was told to remove her clothes and lay face down on a towel on the bed. The offender then used oil to rub her buttocks, during which his fingers came very close to and almost penetrated her anus. Although she attempted to remove the offender’s hands, the massage continued until he had massaged almost every part of her body.

23. In his evidence before the jury, the offender agreed that he had massaged SS many times but claimed that any touching was consensual and that SS enjoyed the massages. Clearly, the jury rejected this evidence, as I do.

24. Counts 4 through to 6 relate to the complainant whose initials are AP. AP was born 1 October 1997 and she was 18 when she arrived in Australia in September 2016, from Germany, on a working holiday visa.

25. On 16 September 2016, three days after AP’s entry into Australia, the offender met her at Bathurst Railway Station and drove her to the farm. When she first arrived a French male was staying at the property. However, he left a few days later. A day or two after this the offender told AP that she had back problems and did not walk freely. AP denied having back problems but the offender offered to give her a massage. Although she felt uncomfortable, the offender reassured her that she could trust him.

26. The offender commenced giving massages to AP on a mattress in front of the fire in the living room, telling her it was not sexual for him, just “bones and muscles”. The offender started the massages on AP’s back but then told her there was some problem with her buttocks and that he needed to massage that area as well.

27. During the first massages, the offender pulled down AP’s pants a little bit but, as time went on, he required her to remove more and more clothing. During many of the massages the offender would put on a TV show or play 1970’s music, including Pink Floyd.

28. As time went on, the massages progressed to touching the sides of her breasts and in between her legs. The offender also asked AP what she liked to drink and after she said she liked red wine, he would give her red wine at night. He also asked her at times to massage him. Although most of the times she refused, on occasions she did provide him with some massages.

29. In the offender’s trial, evidence was led to the effect that a relationship had developed which, at various times, involved sexual contact and that this existed for some time between the offender and AP. Furthermore, the offender pointed to numerous photographs of AP, some of them showing her naked or semi-naked, which had been taken by the offender with the apparent consent of AP and other photographs taken by her, which it appears she had sent to the offender.

30. Evidence was also admitted in the trial of a collection of text messages between AP and the offender which pointed to a mutual sexual relationship having existed at times.

31. The offender said in evidence that there had been sexual contact between AP and himself on many occasions but maintained that this was always consensual and had developed quickly, at an early stage during her stay at the farm, after he commenced giving her massages.

32. According to the offender’s evidence, although the massages started off as therapeutic, they quickly became sexual and were a type of foreplay. While this evidence was placed before the jury, its verdicts in relation to counts 4, 5 and 6 clearly indicate that, notwithstanding this evidence, the jury was satisfied beyond reasonable doubt that each of those offences did occur and that, at the relevant time, there was no consent.

33. On 1 October 2016, which was AP’s 19th birthday, another German girl arrived at the property. AP told the offender that she wanted the massages to stop when this girl arrived. However, the massages continued, although they occurred in AP’s bedroom.

34. On one occasion, between about 16 September and 18 October 2016, which is the subject of counts 4, 5 and 6, the offender was using oil to massage AP, who was completely naked, when the offender suddenly inserted his thumb into her vagina and then inserted a finger into her anus. She was understandably shocked and froze.

35. The offender pushed his thumb in and out of her vagina and then told her to turn around. After she turned to lay on her back, the offender said he wanted to show her something she had never experienced before and he then licked her vagina, inserting his tongue in and out.

36. The insertion of a thumb into AP’s vagina is the sexual intercourse without consent offence, which is count 4. The anal penetration involving a finger is count 5. And the cunnilingus and penetration of her vagina by the offender’s tongue is count 6.

37. A further alleged offence is that described in sequence 7 which involved the offender’s actions in allegedly kissing AP on the breasts and attempting to kiss her on the lips during the incident that I have just described. The Crown initially submitted that I should make a finding beyond reasonable doubt and deal with these matters as backup offences of indecent assault pursuant to s 167 of the Criminal Procedure Act 1986. The Crown initially made the same submission in relation to the sequence 6 alleged offence involving the touching of AP’s breasts during an earlier massage. However, in oral submissions, the Crown accepted that these two matters should be treated as contextual evidence.

38. In my view, this is the more appropriate approach to this evidence, which I do treat as contextual and not as discrete offences or as matters in aggravation.

39. I turn to the facts concerning the next complainant.

40. Count 9 concerns the third complainant whose initials are TE. She was born in August 2000 and at the time of the offence in count 9 she was 18.

41. TE was hoping to obtain work eventually as a veterinary nurse and was looking for work experience on farms to assist in those plans. In early 2019 her mother showed her the website for the WWOOF organisation, and this led to some email exchanges between TE and the offender, in which it was agreed that she would take up a placement on the farm.

42. She arrived there on 5 May 2019 and stayed until 18 May 2019. Before she arrived, she had been told by the offender that his wife would also be at the property. However, some time after TE arrived, the offender told her that his wife no longer lived at the farm. In the almost two weeks that TE stayed at the farm there was no one else staying there, other than she and the offender. Although there was no mobile coverage at the farm, TE did have access to wifi and could communicate with her mother by Facebook Messenger, and WhatsApp.

43. While TE was at the farm, the offender said things of a sexual nature to her including that he had had a vasectomy and also could “fuck like a machine and not get anyone pregnant”.

44. In May 2019, at the time that she attended the farm, TE suffered from a back problem, where the muscles in her back would become very tight, such that she had trouble breathing properly. A few days after she arrived at the farm, the offender said something to her about her back, which was along the lines that it could be fixed with regular massage.

45. One night the offender told TE to take a bath, which she did and when she returned to the lounge room there was a mattress on the floor next to the fire. The room was dark and the offender had put on slow music, saying it was to set the mood. TE was told to lie on the mattress without her clothes, other than her underwear. The offender then left the room while she removed her pyjama top, bra and pyjama pants and laid face down on the mattress, wearing only underpants.

46. When the offender returned to the lounge room he used oil and massaged her upper body, working from the neck to her lower back, at which point, to use her words, he “started to massage my arse”, saying this was necessary because sometimes there is tension from below the lower back that can cause problems.

47. TE believed this explanation and allowed him to carry on. However, the offender then started massaging TE’s inner thighs and worked up closer to her genital area. TE was unsure exactly how close he got to her genitals but finally she said, “Stop” and the offender backed off, as she put it, and the massage ended.

48. It was argued by the Crown that I should find that the offender’s fingers actually came into contact with TE’s labia, based on evidence she gave in response to a question from myself at p 207 of the transcript. However, I also note the answer she gave at line 12 on that page, where she initially said that “It could be possible” that the touching did not go that far. I note also her agreement at p 208, line 33 of the transcript, that in her statement she said that the offender’s hands came “very close to my genitals”. Having regard to all the evidence, while I am not satisfied beyond reasonable doubt that the offender actually touched TE’s vagina, I am satisfied that the offence involved massaging from her buttocks to her inner thighs and very closer to her genitalia.

49. The offender was touching her in that region for something longer than a few seconds and up to about a minute, although TE said it felt a lot longer than that. Although the complainant initially, that is TE, consented to be massaged, she did not consent to the offender touching between her thighs, close to her genitals. She, understandably, felt scared during this part of the massage and concerned that the offender might not stop.

50. Count 10 relates to the complainant whose initials are JS. JS was 21 when she arrived from Germany into Australia on 11 July 2019 for a 12 month working holiday. After spending about a week in Sydney and the Blue Mountains, she downloaded the WWOOF app, saw the offender’s ad and made contact with him.

51. On 18 July 2019 she travelled to Bathurst, where she was picked up by the offender and taken to his farm. When she first arrived there was a male working at the farm but when he left, about four days later, she was alone with the offender.

52. While on the farm, JS was engaged in feeding horses and chickens, tearing hay and cleaning stables. Not long after her arrival and while she was alone on the farm with the offender, he told her that she had “bad movement. Your hips are not correct. You need a massage” or words to that effect.

53. Although JS said she was okay and did not want a massage, the offender kept asking and she eventually agreed. After this, one evening, the offender placed a mattress on the floor in the lounge room. He then told JS to take off her shirt while he left the room and when he returned he told her she also needed to take off her jeans. Although JS was uncomfortable with this, she did not know what to say, as she was alone with the offender and, as she put it, “in the middle of nowhere”.

5. The offender left the room again while JS removed her jeans, leaving on the G-string underwear she was wearing. When the offender returned to the room, he gave her a towel to cover her bottom and started to massage her with oil. The massage included the bottom of her legs, and eventually the offender began massaging Jasmine’s buttocks and came close to going between her legs, towards her vagina, although he did not actually touch her vagina. JS was shocked and froze and when the offender asked if she was comfortable, she told him, “No, I don’t feel comfortable because I’m a young girl and I’m in the middle of nowhere.”

6. The indecent assault offence in count 10 consists of the offender’s actions in massaging JS’s buttocks and close to her vagina.

7. Counts 11 through to 15 relate to the complainant whose initials are ML. ML was 18 years old when she arrived in Australia from Germany on a working holiday visa. On 20 September 2019, two days after arriving in Australia, she travelled to Bathurst, where she was met by Mr Douglas and driven to the farm. At the farm she noticed that she had no phone reception but she was given access to the wifi.

8. When she arrived, the complainant AP was at the farm and they exchanged Instagram details. However, four days later, AP left.

9. On 28 September 2019, Mr Douglas approached ML and said words to the effect of, “Do you have a problem with your lower back?” and asked how long she had been walking this way, suggesting that she was walking slowly and using shortened steps. Although ML said she did not think she had a problem, the offender offered to have a look at her back and ML agreed.

10. The offender then obtained a mattress and placed it on the floor in the living room and ML laid on the mattress with her clothes on. The offender asked her to roll up her T-shirt a bit, which she did. The offender then told ML that she could say “No” if she did not want him to go further and asked if he could take off her pants a little bit. Her T-shirt was also removed at some stage.

11. The offender told ML it was “nothing sexual for him” and he just wanted to help. ML pulled down her pants and underpants and the offender massaged her lower back and buttocks, which had some kind of spasm. After this, the offender told ML to sit up and he massaged her neck. At the end of the massage the offender told ML that he had got a good result from the massage but that more massages were required to fix the problem.

12. The next day, 29 September 2019, the offender, after working with ML all day, told her that he would like to massage her again and he would be able to fix her better if she wore no clothes. Although ML felt that this was “a bit weird”, she trusted the offender and laid on the mattress without clothes, except for her underwear.

13. At the start of this massage, the offender told her to “say ‘stop’ if you feel uncomfortable or in pain”. He then massaged her glutes, that is her buttocks, after which he asked her to turn onto her back and to close her eyes and relax. The offender then massaged ML’s shoulders, the area around her bra and her hips, stomach and her legs. During this part of the massage, the offender massaged ML’s legs, including her inner thighs, near her vagina, which he massaged in a circular motion for a few minutes, just outside the area covered by her underpants. This is the offence described in count 11, being sexual touching without consent.

14. On the next day, 30 September 2019, the offender told ML that he had to massage her again because he could not fix her “problems” in two days. ML laid on the mattress again in her underwear and the offender commenced to massage her with oil. After a few minutes, the offender asked ML if he could take off her underwear. ML said, “I don’t know”, because she was confused and did not know what the offender wanted. The offender then removed ML’s underpants. The offender also, at some stage, told her that she could say “No” or “Stop”, however, she did not say either of these things and said, in her evidence, which I accept, that she did not realise what was happening.

15. As she lay on her stomach, the offender rubbed her inner thighs for up to about five minutes, coming closer and closer to her vagina, until he eventually inserted a finger into her vagina. He did this three times with his finger remaining in ML’s vagina for 2 to 3 seconds on each occasion. On the third occasion ML said, “Stop”, to which the offender replied, “Okay” and removed his finger. These acts of digital penetration of ML’s vagina are the subject of the sexual intercourse count, which is count 12.

16. A few seconds after this, the offender kissed ML on the bottom and this is the sexual touching without consent offence in count 13. After these events, ML turned around and the offender said, “Don’t go weird on me.” He also said something like, “I’m flattered but save yourself for someone special” and “Are we okay?” to which ML replied, “Yes, everything is okay”, because she did not know what would happen if she said, “No”.

17. Later that day, ML complained to a friend in Germany via an online chat service and, on 1 October 2019, she also communicated with AP via Instagram in which she referred to the offender having “put his fingers inside me” and “kissing my butt”.

18. On 6 October 2019 another German worker arrived at the farm, her name being HB. On that day the offender asked ML to give him a massage and she agreed, as she said in evidence that she did not want HB to feel uncomfortable. ML then, initially while HB was present, massaged the offender’s neck, however, after HB left the room, the offender massaged ML’s neck, during which he put his hands inside her top and took hold of her breasts inside her bra with both hands. When ML protested, saying it was “too close”, the offender said, “Come on, it’s just a breast” and continued to touch her breasts. ML said that this continued for “a few more minutes”, which I find was a period of at least a minute or two. This incident is the sexual touching offence in count 14.

19. A few days later, ML told HB that the offender had put his fingers inside her while massaging her and, on 18 October, the offence described in count 15 took place. This occurred when the offender drove ML to another property where he asked to massage her, which she initially refused, as she said it was cold. However, the offender persisted and took a mattress from the building on those premises and placed it on the ground in the sun and, after some minutes, told ML that the mattress was warm and to take off her T-shirt and pants and lay on the mattress in her underwear. ML did so, removing her pants and shirt as she thought she had little choice, given her isolated position. The offender then massaged her, including her inner thighs, coming closer and closer to her vagina, until she said, “Stop, that’s too close.” The offender then said, “Come on, it’s just like a magnet to me. It could be good if you had the anti-magnet”. The offender’s actions in massaging close to ML’s vagina is the sexual touching offence in count 15.

20. Two days after this, ML left the farm and travelled to Sydney, where she went to the office of AIFS and told one of the staff what had happened. She was then accompanied to Surry Hills Police Station in Sydney, where she made a statement.

21. Those are the factual matters that I find proven and upon which I proceed to sentence the offender.

VICTIM IMPACT STATEMENTS

71. Victim Impact Statements have been provided to the court from the complainants, AP, TE and also by ML, who read out her statement today. It has not been submitted by the Crown that I should treat the contents of those reports as aggravating any of the offences and I do not do so. However, there is no doubt, as the courts of this country have recognised for some time, that the effects on victims of sexual offences are often severe and long-lasting. In many cases, the offending leads to significant psychological issues, including anxiety, difficulties trusting others, a fractured sense of self-worth and often self-blame.

72. The Victim Impact Statements of AP, TE and ML speak very clearly of these very same consequences and each of them refer to the shame that they experienced as a result of the offender’s selfish actions. Hopefully, they now understand or will eventually accept that the only person who should feel shame is the offender, Mr Douglas.

OBJECTIVE SERIOUSNESS

73. An important part in determining the sentence is that I make an assessment of the objective seriousness of each of the offences. Clearly, they must all be regarded seriously, given the maximum penalties that apply and especially the sexual intercourse counts which carry a maximum of 14 years imprisonment, as well as a standard non-parole period.

74. Many of the offences share some common features, including an abuse of a position of authority, a complainant who was vulnerable, and being committed in the home of the complainants. These are matters to which I will make further reference in discussing each offence or group of offences.

75. Counts 1 through to 3 are all indecent assault offences committed on SS on different days. They were committed in what was, at the time, her home, where she was entitled to feel safe. This principle applies just as much to a situation where the complainant adopted the farm as her home for the duration of her stay (see Jonson v R [2016] NSWCCA 286).

76. At the time she was also vulnerable, given her geographical isolation, her reliance on the offender for food and shelter and for signing off on her visa requirements, and her limited English. The offences also involved an abuse of the offender’s position of authority, given that he was effectively her employer.

77. Count 1 involved the offender using his hands to massage parts of SS’s breasts, despite her protests. It was not a momentary touching but went on for some time, given her evidence that he “did this extensively”, although, I note that it did not involve contact with her nipples.

78. Offences of indecent assault can vary widely, some being more serious than others. In terms of the objective seriousness of this particular offence, I assess it as being below the mid-range but not in the low range, when compared with the range of inappropriate sexual offending contemplated by this type of offence.

79. I assess counts 2 and 3, which involved oil massages, in which the offender came very close to the genitals and anus (count 2) and very close to the anus (count 3) as being just below the mid-range.

80. Counts 4, 5 and 6 are the three sexual intercourse counts relating to AP, which were on a single occasion. The offences occurred in a place which was, at the time, AP’s home, where she should have been safe. They also involved abuse of a position of authority and were committed against a young woman who was vulnerable because of her physical isolation, her dependence on the offender, and her lack of familiarity with cultural norms in a foreign country.

81. While there is evidence that after these offences there developed some form of relationship between AP and the offender which was, at times, sexual, this does not, in my view, reduce the objective seriousness of counts 4, 5 and 6, which were committed shortly after AP met the offender.

82. In my opinion, the objective seriousness of counts 4 and 5, which involved digital penetration of AP’s vagina and anus, are around the mid-range. Count 6, which involved cunnilingus, although only for a short time before AP protested, is an offence just below the mid-range of objective seriousness.

83. Count 9, the sexual touching of TE, involved a relatively brief period in which the offender massaged her buttocks and inner thighs, very close to her genitalia. Again, the offence was committed in what was, at the time, the complainant’s home, in circumstances where she was vulnerable by reason of her physical isolation. It also involved an abuse of a position of authority. I assess this offence as being just below the mid-range of objective seriousness.

84. Count 10 is the sexual touching offence in which the offender massaged JS on her buttocks, going between her legs and coming close to her vagina. This offence also took place in the complainant’s then home, in circumstances where she was vulnerable because of her isolation and involved an abuse of the offender’s position of authority. In my opinion, the objective seriousness of this offence is just below the mid-range.

85. Counts 11 to 15 relate to ML. Each of these offences, except count 15, occurred in a place that was, at the time, ML’s home where she should have been safe. Each of the offences involved an abuse of the offender’s position of authority and were committed at a time when ML was vulnerable by reason of her isolation, although I accept that this isolation was, to a slightly lesser degree in relation to count 14, when another girl was present at the farm.

86. I assess the objective seriousness of counts 11 and 15, involving massaging of the inner thighs close to ML’s vagina, as being just below the mid-range of objective seriousness.

87. Count 12, which involved digital penetration of ML’s vagina, lies around the mid-range of objective seriousness for this type of sexual intercourse offence.

88. In my assessment, count 13, which occurred during the same massage, when the offender kissed ML’s naked bottom, lies below the mid-range but not in the low range for that type of sexual touching offence.

89. As to count 14, being the sexual touching and massaging of ML’s breasts under her bra, I regard this as being just below the mid-range.

90. In having regard to the isolation of each of the complainants, I am conscious of the fact that each of them did, apparently, have access to wifi and could have made contact with friends or family. However, the practical reality was that they were alone on a farm “in the middle of nowhere”, a long way from social contacts and in circumstances where they were dependent on the offender for work, food and shelter.

91. In having regard to the fact that the offences involved an abuse of authority and were committed in the home of the complainants, in circumstances where they were vulnerable, I am conscious of the fact that there is a degree of overlap among these considerations. I have taken care, therefore, to avoid any double counting of these factors. I make the same comment with respect to my consideration of the isolation factor.

SUBJECTIVE MATTERS

92. Turning then to subjective matters relating to Mr Douglas. Mr Douglas is now 68 years of age. His criminal history does not include any matters for sexual assault but it dates back to the early 1970’s, when he was in his 20’s, involving matters of dishonesty and breaking and entering.

93. In the 1990’s he was dealt with on separate occasions for offences of stealing, assault, cultivating cannabis and for possessing a prohibited weapon. While his record is not extensive, it is such that it disentitles him to the leniency that might be extended if he had not previously come before a court.

94. His background has been placed before the court substantially by means of the psychological report of Mr Machlin. He was born and raised as a child in Adelaide and recalled a good upbringing in a well-functioning family. He was a capable student at school but he ultimately developed an interest in quarter horse racing and breeding, and training horses became his livelihood, which he commenced with his then wife at a property in Oberon before they moved to the property at Peelwood. He has been legally separated from his wife for some years and she moved permanently from the Peelwood farm in about 2017.

95. Evidence was admitted in the trial about the offender’s positive involvement in two charities, which aim to assist farmers. This is a matter I have taken into account in his favour, as it is a matter supporting his prospects of rehabilitation.

96. His medical history includes an accident in 2011, with injuries to his back, neck, shoulder and teeth. This has left him with some residual pain problems from his back for which he previously received strong pain killers but now has to make do with paracetamol, which gives little relief.

97. He also apparently suffers regular migraines which he attributes to being bashed in his cell in the early part of his period in custody, allegedly arising from media coverage and the nature of his charges. It was argued that this was a form of extra curial punishment, and I have had regard to it for that purpose, although it is a matter to which I give limited weight.

98. The psychologist notes that the offender reported feelings of depression in the first few months of being in custody. However, the psychologist was not able to diagnose any psychological condition in Mr Douglas. He found the offender to be a generally well-functioning and community-minded man with no mental health problems.

99. In relation to the offences, Mr Douglas maintained to the psychologist that any sexual contact was consensual and that he had “no idea of the minefield” that he had entered and vowed that he would be abundantly cautious in future and avoid any risk of confronting the law again.

100. The psychologist notes that Mr Douglas has literally “lost everything”, being his rented home, his business, his reputation and his charitable activities. I accept that this is so, although the weight I can give it is limited.

101. Given the offender’s age, custody in gaol will be more difficult for him than for a younger man. However, apart from the issues that I have noted, he is otherwise a relatively healthy and fit individual with no mental health issues and so his age is not a matter which can mitigate the appropriate punishment to any great degree.

REMORSE

102. There is, of course, no evidence of remorse, given that the offender maintains his innocence. His lack of remorse is also demonstrated by his assertion to the psychologist that he “now” has a greater knowledge of the laws of consent and had “no idea of the minefield” he had entered. This is, to say the least, a surprising assertion for an apparently intelligent man of 68 years with no mental health problems. Mr Douglas’ evidence during the trial that he commenced giving massages to the complainants for therapeutic reasons, to help them carry out their work on the farm, was transparently unbelievable and rightly, in my view, rejected by the jury.

103. Rather, the evidence demonstrates that the offender relentlessly pursued the complainants who were young enough to be his grandchildren, for the purposes of sexual gratification. He did this by a combination of factors. First by inventing or referencing physical problems in the complainants that he claimed he could “fix” with massage, by reassuring the complainants that he could be trusted, and then making persistent requests or demands that the complainants submit to massages, wearing as little clothing as possible and preferably none.

104. The offending in this case cannot be regarded as a temporary lapse in otherwise appropriate conduct, or as arising from some confusion about the “laws of consent”. As was submitted by the Crown, the offender was “calculated and callous in his grooming and offending against these five young women”.

105. In my view, his moral culpability for all of the offences is high.

106. In terms of future risk, the psychologist, after acknowledging the exploitative nature of the offender’s actions, suggests that it is unlikely he will repeat this sort of offending now that his behaviour has been scrutinised. In my view, the offender’s risk of re-offending is relatively low, given his advancing years and likely limited access to young women in similar circumstances in the future.

107. Overall, I think his prospects of rehabilitation are reasonable.

DETERMINATION

108. I am satisfied, in relation to each of the offences, that no penalty other than full time imprisonment is appropriate. In making that determination and in setting the sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which, in summary, involve the need for adequate punishment; the need for deterrence, both of this offender and others; the need to protect the community; the need to make the offender accountable; to denounce his conduct; to recognise the harm done; but also, of course, to leave room to promote rehabilitation.

108. In determining the indicative sentences, to which I will make reference in a moment, and the overall aggregate sentence which I intend to impose, I have had regard to statistics prepared by the Judicial Commission, although subject to the limitations which apply to such material.

109. I have also had regard to a number of decisions of the Court of Criminal Appeal, including Mol v R [2017] NSWCCA 76, Baines v R [2016] NSWCCA 132, Salmond v R [2010] NSWCCA 141, R v Qin [2008] NSWCCA 189 and R v Porteous [2003] NSWCCA 18.

110. I do not however suggest that any of those cases are directly comparable to Mr Douglas’ case, nor do I suggest that they establish any range of sentence.

111. Given that there are multiple offences, I intend to impose an aggregate sentence. It is necessary, therefore, that I nominate individual indicative sentences for each of the offences, which represent the sentences that I would have imposed in each case, if they were being dealt with separately.

112. In determining the aggregate total sentence, I have had regard to principles of totality and to concurrency and accumulation, so as to avoid imposing an overwhelming sentence that might be seen as crushing any prospects of rehabilitation.

113. Given these factors, the ultimate aggregate sentence to be imposed will represent only a percentage of the sum of the various indicative sentences which are as follows.

114. The indicative sentences are as follows:

115. For count 1, imprisonment of 12 months, and each of the periods I refer to are, of course, periods of imprisonment. For count 2, 18 months. For count 3, 18 months. For count 4, three years with a two year non-parole period. Count 5, three years with a two year non-parole period. For count 6, two years 10 months with a 22 month non-parole period. For count 9, 18 months. For count 10, 18 months. For count 11, 18 months. For count 12, three years with a two year non-parole period. For count 13, 12 months. For count 14, 14 months. For count 15, 18 months.

116. Given that there are five individual complainants against whom offences were committed, there is, in my opinion, a need for some accumulation in determining the aggregate sentence. However, counts 4, 5 and 6 which were committed in relation to AP, were all part of a single incident and, in that case, there should be, in my view, a significant degree of concurrency.

117. The same applies for counts 12 and 13 involving ML, which also were committed in the course of the same massage.

118. I make a finding of special circumstances for varying the ordinary ratio between head sentence and non-parole period, based on this being Mr Douglas’ first time in custody and the need for him to be monitored in the community on his release, given that he has lost his livelihood and accommodation and will need to start afresh.

119. The sentence I impose is as follows:

120. I impose an aggregate head sentence of nine years imprisonment.    I impose a non-parole period of six years.    Each of those will date from 22 October 2019. The head sentence will expire on 21 October 2028 and the non-parole period will expire on 21 October 2025.

**********

Decision last updated: 01 December 2021