R v Fox
[2011] NSWDC 250
•24 November 2011
District Court
New South Wales
Case Title: R v Fox Medium Neutral Citation: [2011] NSWDC 250 Hearing Date(s): 24/4/11, 12/8/11, 14/10/11 Decision Date: 24 November 2011 Before: KING SC DCJ Decision: The overall effective accumulated non-parole period is four and a half years from 29 April 2011 and the balance of term is four and a half years, that is, the overall total accumulated sentence is nine years, that is, the accumulated non-parole period is 50% of the overall term.
I recommend that when released on parole the offender be subject to supervision by the Probation and Parole Service in particular with respect to sexual offending, counselling and/or treatment.
Catchwords: CRIMINAL - Sentence - Forms 1 - Buggery - Indecent assault - incite act of indecency - victims male and under 16 - paedophile grooming - consent - Victim Impact Statements Legislation Cited: Crimes Act 1900 ss 79, 81, 61E (1), 61E(2)
Crimes (SP) Act 1999 ss 3A, 5, 21A(2), 32
Criminal Case Conferencing Trial Act 2008 s 6 (1) & (5) & (12)Cases Cited: AB v The Queen (1999) 198 CLR 111
Clinton v The Queen [2009] NSWCCA 276
Featherstone v The Queen [2008] NSWCCA 71
R v Borkowski [2009] NSWCCA 102
R v Dib [2003] NSWCCA 117
R v JCW (2000) 112 A Crim R 466
R v MJR (2002) 54 NSWLR 368
R v Moon (2000) 117 A Crim R 497
R v Palu (2002) 134 A Crim R 174
R v S [2000] NSWCCA 13
R v Shore (1992) 66 A Crim R 37
R v SY & Anor [2003] NSWCCA 291
R v Thomson; R v Houlton [2000] 49 NSWLR 383
R v Totten [2003] NSWCCA 207Category: Sentence Parties: Regina
Fox, Mitchell BruceRepresentation - Counsel: Crown: Ms K Shead
Defence: Mr J Glissan QC
Mr W. J. WilcherFile Number(s): 2010/155562
2010/155570
2010/155573Publication Restriction: NON-PUBLICATION ORDER RE NAMES OF VICTIMS AND EVIDENCE IDENTIFYING VICTIMS
SENTENCE
HIS HONOUR: Mitchell Bruce Fox appears for sentence in respect of seven offences, each involving prohibited sexual activity contrary to the Crimes Act1900 (the "Act"), with one of three male child victims on six separate occasions occurring within the period from 31 December 1979 to 1 January 1985 at various locations within the Sydney metropolitan area.
When sentencing in respect of three of the offences, Counts 4, 5 and 6, the Court is asked to take into consideration pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 a further offence contained on a separate Form 1.
The offender accessed each of the three male child victims by arrangement with associates who were paedophile procurers or pimps who had targeted young, vulnerable individuals and groomed them to the extent that they were each habituated to and compliant with sexual activity with adult males such as the offender. They were provided to the offender at his private residences at Bellevue Hill and Collaroy or on "Skipper-A-Clipper" cruisers, with or without payment to the child or the procurer.
During the five-year period during which the offender committed the offences, he was a successful businessman of thirty-six to forty-one years of age. The offending conduct commenced shortly after the conclusion of an eight-year homosexual partnership and concluded either shortly before or shortly after the offender entered into a heterosexual marriage.
There is no evidence that the offender has ever engaged in any similar offending conduct either before or after the five-year period referred to.
THE OFFENCES
Counts 1 and 2 - Buggery contrary to s 79 of the Act - relating to the victim PH, who was thirteen to fifteen years of age in the period relating to Count 1, and twelve to fifteen years of age in the period relating to Count 2. [The maximum penalty at the time for Buggery was fourteen years penal servitude.]
Counts 3 and 4 - Buggery contrary to s 79 of the Act - relating to the victim SM, who was ten years of age in the period relating to Count 3 and eleven years of age in the period relating to Count 4. (Form 1 - a further offence of Indecent Assault contrary to s 81 of the Act is to be taken into account when sentencing for Count 4. SM was then twelve years of age.) [The maximum penalty at the time for Buggery was fourteen years penal servitude and for Indecent Assault it was five years penal servitude.]
Counts 5, 6 and 7 relate to the victim AS.
Count 5 - Assault and Commit an Act of Indecency upon AS, then being under the age of sixteen, namely the age of nine to twelve, contrary to s 61E(1) of the Act. (Form 1 - a further offence contrary to s 61E(1) of the Act is to be taken into account when sentencing for Count 5. AS was nine to twelve years of age at the time of this offence.) [The maximum penalty at the time for Assault and Commit an Act of Indecency was six years penal servitude.]
Count 6 - Incite AS, then being under the age of sixteen, namely the age of nine to twelve, to an Act of Indecency with himself contrary to s 61E(2) of the Act. (Form 1 - a further offence contrary to s 61E(2) is to be taken into account when sentencing for Count 6. AS was nine to twelve years of age at the time of this offence.) [The maximum penalty at the time for Incite to an Act of Indecency was two years imprisonment.]
Count 7 - Indecent Assault on AS contrary to s 81 of the Act. AS was nine to eleven years of age in the period relating to Count 7. The maximum penalty at the time for Indecent Assault was five years penal servitude.]
BACKGROUND AND THE DISCOUNT FOR UTILITY
The offender was arrested and charged with thirty-one offences relating to the three victims on 22 June 2010. On that date the presiding Magistrate at the Hornsby Local Court granted bail and made orders for service of the brief and for the matter to be transferred to the Downing Centre Local Court on 10 August 2010.
At the Downing Centre on 10 August 2010, orders were made pursuant to the provisions of the Criminal Case Conferencing Trial Act 2008 ("Conferencing Act") that the Crown serve a pre-trial disclosure certificate on or before 7 September 2010 and any outstanding statements on or before 21 September 2010. The parties were ordered to participate in a compulsory conference on or before 21 September 2010. The matter was adjourned to 28 September 2010 for plea or committal.
The Crown did not serve a pre-trial disclosure certificate and consequently no compulsory conference was held.
When the matter returned to court on 28 September 2010, a Crown application for a further month to comply with the orders was rejected. The parties by consent sought orders waiving the committal and for the offender to be committed to the District Court for trial. Such orders were made. It appears implicit in this sequence of events that the presiding Magistrate must have determined, whether explicitly referred to or not, that the compulsory conference required by s 6(1) of the Conferencing Act need not be held as provided by s 6(5). Accordingly, no compulsory conference was ever held and no compulsory conferencing certificate pursuant to s 12 of the Conferencing Act could issue.
The matter first came before the District Court on 8 October 2010. Orders were made, inter alia, that the Crown present an indictment on or before 26 November 2010, and the matter was listed for arraignment on that date. Prior to that date the Crown served a number of additional statements taken post committal, which included a lengthy statement from John Shiel, a very significant witness, as will be seen from the agreed facts. The matter was listed for trial on 7 March 2011 with a three-week estimate.
On 26 November 2010, the Crown was not then able to present an indictment and the Court made orders inter alia that it do so by 10 December 2010 and serve notice of the prosecution case on or before 17 December 2010. The trial date was confirmed and a pre-trial conference directed on or before 28 January 2011, with the matter listed for mention on that date.
The offender's legal representatives had the matter restored to the list on 17 December 2010 due to further non-compliance by the Crown with orders. A further order was made that the indictment be served on or before 21 December 2010. An indictment dated 20 December 2010 was filed and served by 21 December 2010, containing twenty-one counts, being a reduction of ten from the original offences subject to the committal. This resolution involved a number of the original charges (twenty-five) being "no billed", and a number of fresh "ex officio" charges (fifteen) being included.
The indictment also contained variations of the particulars of offences in respect of which the offender had been committed for trial and which were included on the indictment. These variations related to dates and or the location particularized. In respect of dates, some were minor variations as to the commencement or end of the period in which the offences were alleged to have occurred, and some were substantial. For example, in respect of Count 1 on the final indictment, the period alleged changed from 1 March 1979/30 August 1979 to 31 July 1981/24 July 1983. In respect of changes of location as particularized, examples are: Collaroy changed to Sydney, Sydney changed to Bellevue Hill or Vaucluse changed to Bellevue Hill. In respect of the change from Vaucluse to Bellevue Hill, the change was made because it was initially understood that some offences occurred at the offender's residence, believed to be located in Vaucluse, but later established that his residence was in fact located in Bellevue Hill. At all times the facts referred to his residence with a description of it that meant that the offender could not have been misled by the reference to Vaucluse.
The victims remained the same. All of the seven counts on the current indictment and the attached Form 1 offences were included on the indictment of 20 December 2010.
On 3 February 2011 the Crown sought to vacate the trial date to ensure that John Shiel had been sentenced before being called in the prosecution case. The application was opposed and the motion to vacate the trial date refused. The offender was then arraigned on the indictment of 20 December 2010 and entered not guilty pleas to all twenty-one counts.
On 16 February 2011 the Crown finally served the notice of the prosecution case, having failed to comply with two earlier orders to do so on prior dates.
Two further statements of AS, dated 16 and 25 February 2011, and John Shiel, dated 8 March 2011, were later served.
The written submissions on behalf of the offender in respect of the utility discount and the progress of the matter include the following:
"2.37 Mr Fox, at all times, has been ready, willing and able to participate in the Case Conferencing regime. His inability to do so lies squarely at the feet of the Crown, who despite being required to act as a model litigant breached numerous orders of the court, ignored practice notes and statutory provisions.
2.38 To now seek to penalise Mr Fox for giving his plea of guilty at a time after committal, and on 7 counts (with 3 on a Form 1) from the original indictment as finally filed on 20 December 2010 (that contained 21 counts) when the Crown, by reason of its persistent breaches of the orders of the Court, the practice notes and section 129 of the Criminal Procedure Act prevented the case conferencing process, would work a serious injustice that will not withstand judicial scrutiny."
The failure to comply with any orders of the Local or District Courts of New South Wales or otherwise conform to practice and any resultant delay in the progress of the matter are relevant to the question of the appropriate discount for utility. Whether the cause is incompetence, dilatory application, institutional dysfunction, lack of resources or the recognized difficulty of obtaining coherent and reliable information from adult complainants, let alone children, in respect of alleged offences occurring decades in the past, such conduct remains relevant.
The matter was listed for trial commencing 7 March 2011. It came before me on 8 March 2011 for trial. The indictment contained the twenty-one counts to which the offender had pleaded not guilty on 3 February 2011. Legal argument began, relating to a notice of motion for separate trials in respect of the offences relating to each of the three child victims and to set aside the Crown tendency notice to allow the evidence of each offence as tendency evidence in respect of each of the offences against each victim.
On 14 March 2011, the Court declined to separate the matter into three separate trials and ruled that the evidence in respect of each offence and each victim was admissible as tendency evidence. While I did not say so at the time of that ruling, I regarded the application as lacking significant merit. In lay terms I would describe the application as a desperate last roll of the dice.
In the course of the application, Mr Glissan QC, counsel for the offender, had appropriately conceded that, in the absence of the application succeeding, verdicts of guilty would be inevitable, at least in respect of some of the counts.
The parties sought time to discuss the future progress of the matter, and the offender entered pleas of guilty to a fresh Indictment on 15 March 2011 containing only seven counts of the twenty-one contained in the earlier indictment, and asked the Court to take into consideration the three Form 1 offences as previously referred to.
The factual allegations remained constant from the indictment of 20 December 2010 on which the offender was arraigned on 3 February 2011. The Crown merged certain charges resulting in 21 counts being reduced to seven counts and three offences to be taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act. The facts had also been consistent between the Local Court committal proceedings and the indictment on arraignment in the District Court, with the exception of changes in the alleged date range and/or location of some of the offences.
The relevance of that history is to the discount for utility to be provided on sentence and the application of the Conferencing Act.
The Conferencing Act applies, with certain presently irrelevant exceptions, to all proceedings for an indictable offence heard in the Local Court sitting in the Downing Centre Local Court or at Central (s 4) and where a Court Attendance Notice was filed on or after 1 May 2008 (s 5 and reg 6 CCCT Regulation 2008) but before 8 October 2011 (CCCT Amendment Regulation 2011). That is, it applies to this matter.
Significantly, the Conferencing Act allows the Court to only provide a discount of up to 12.5% where a plea of guilty is entered after committal (s 17(2)). The Conferencing Act provides that the Court may only provide a discount of more than 12.5% for a plea of guilty after committal (s 17(4)) if the Court is satisfied the offender has proved on the balance of probabilities (s 17(6)) that "substantial grounds" as referred to in s 17(4) exist as referred to in s 17(5). The only grounds are those provided in s 17(5) subsections (a), (b), (c) and (d). It is not within those limited "substantial" grounds provided as a ground that the purposes of the Conferencing Act were frustrated by the failure of the prosecution to comply with the provisions of the Conferencing Act and orders made by the Local Court for compliance with that Act.
If the offender, as submitted, "at all times, has been ready, willing and able to participate in the Case Conferencing regime", it would have been a simple matter of consenting to a further adjournment in the Local Court for the Crown to comply with the relevant orders and requirements to enable a "compulsory conference" to take place before committal.
The only possible ground is s 17(5)(c) which provides that a greater discount may be provided if the offer to plead to an alternative offence is made for the first time, and accepted, after committal for trial, and the offender had no reasonable opportunity to offer to plead guilty to such an offence before the committal.
In this matter there is no evidence that the offender offered to plead guilty to any offence until after the application to reject tendency evidence and separate the offences into separate trials in respect of each victim. In the circumstances, the Court will allow the maximum discount permitted of 12.5%, taking account that it is a discount for the specific matters provided by s 16(2) of the Conferencing Act.
If the Court was not constrained by the provisions of the Conferencing Act the discount for the utility of the pleas would need to be considered with regard to the principles referred to in Thomson & Houlton [2000] 49 NSWLR 383 and subsequent cases including, but not limited to Dib [2003] NSWCCA 117 Hodgson JA, with Barr J agreeing, at [5] to [6]; SY & Anor [2003] NSWCCA 291, Howie J, with Ipp JA and Whealy J agreeing at [85] to [87]; Borkowski [2009] NSWCCA 102, Howie J at [27] to [31] and the later qualification by Howie J as to what he meant in Borkowski.
In light of the possibility that the Court is in error in relation to the application of the Conferencing Act, it is appropriate to indicate that the Court is of the view that the discount of 12.5% is at the upper end of any appropriate range that might have otherwise applied.
The offender knew that he had committed the offences and could not have been significantly misled by either error in the period or location as referred to in any of the charges prior to being committed. It was open to him to offer to plead guilty to amended and/or different offences on the basis of that knowledge and/or to offer compromise in respect of the number of offences to which he would plead. He did not do so.
The indictment of 20 December 2010 to which he pleaded not guilty contained the correct date periods and locations and they remained the same thereafter. The application on the date the trial was listed to commence to reject the tendency evidence and order three separate trials is inconsistent with any intention to plead to any offence. Negotiation between the parties thereafter did avert the necessity for a trial, but at such a late stage that the benefit to the community of "utility" was much diminished and the victims continued to suffer the stress of facing giving evidence in the trial until the "last minute."
THE FACTS
As a result of the fact that the offender only committed offences against victims provided to him by paedophile procurers or pimps who had already groomed the victims to be compliant with sexual activity with adult males, it is necessary that the facts contain material relating to the victims' prior grooming to provide a contextual understanding of why the victims were compliant and uncomplaining. The offender did not groom the victims but took advantage of criminal offending by others. The offender is to be sentenced for what he did in that context rather than the prior criminal conduct by others.
The facts are agreed and are as follows:
PH
In 1977 or 1978, John Thomas Shiel befriended PH, born on 2 December 1967, a couple of years after his mother died. PH was aged about nine or ten years and was in Year 5 at primary school. Shiel took the victim to the beach, to ride motorbikes, to swimming pools, to eat at McDonald's, and out to steakhouses for dinner. They would go bowling and play at pinball parlours. He was also given marijuana and alcohol and bought a BMX bike when he was in Year 7.
Shiel groomed PH for sexual activity. The grooming included sexual activity with other paedophiles, many of whom Shiel associated with, and Shiel made PH available to adult men for sexual purposes. Shiel himself took part in extensive sexual activity with PH when he was a child. The victim describes himself as knowing what to do when he went to bed with the adult men: "I knew what was going on when I went into a room with a man". He was paid money, which he gave to Shiel, and was bought a drum kit when he was in Year 8.
Shiel met the offender through PS. Shiel introduced PH to the offender when PH was about twelve years of age, in about 1980. PH says that meetings with other men seemed prearranged in that there was no real discussion about what would occur.
PH knew that the offender was named "Mitch" and that he owned or was a partner in a Pink Panther printing business that was near the city and had a forklift and a photocopier. He describes him as being smaller than Shiel, of stocky build with black short hair and glasses. He had an American accent, which was not strong. He dressed smartly.
COUNT 1
Between 31 July 1981 and 24 July 1983, Shiel took him to the offender's unit at Collaroy, where on a bed in a bedroom the offender penetrated PH's anus with his penis for about ten minutes, afterwards paying him $50, which PH paid to Shiel. The victim describes that by then "it was like normal for me".
COUNT 2
Between 31 December 1979 and 24 July 1983 Shiel took PH to the offender's house at Bellevue Hill. In an upstairs bedroom the offender penetrated PH's anus with his penis, afterwards paying him $50. The offender later told Shiel that he had had anal intercourse with PH.
PH once asked Shiel why they were not going to visit "Mitch" and he was told that "Mitch" was going to get married. He did not see the offender after this time.
The offender married Carol Mary Fox on 23 July 1983.
Shiel moved on to JH (PH's younger brother, now deceased).
PH did not say anything as a child: his mother had died, and he was scared about what would happen if he said anything to his father. He says that he felt "switched off" about the offending.
SM
From 1980, Shiel began to groom SM, who was born on 16 June 1970, for sexual activity with adult men. The victim was aged nine and his mother was a single mother with two children. Shiel recruited another child (JH) to engage SM in conversation, and following a grooming process, engaged in extensive sexual activity with SM, often with JH. The victim regularly stayed with Shiel for the weekend.
SM was routinely supplied to other men for sexual purposes. This continued until 1988. These men often paid Shiel for sex with the victim. The victim describes himself as being prostituted out. SM was taken to Parramatta Speedway and other exciting outings. He was taken to ride motorbikes and played on Atari computer games. He received many gifts including a signed cricket bat, a watch, jewellery, clothes and video games. He was taken on holidays and to amusement parks. He was given alcohol, cigarettes and drugs.
On an occasion between 30 April and 11 June 1981 Shiel took SM to the offender's house in Bellevue Hill and introduced him to the offender there.
SM had been instructed and trained by Shiel to do sexual acts with male adults without having to be asked, and knew not to act like "a dead fish" when participating in sexual acts.
COUNT 3
The victim describes the offender as being named "Mitch": dark haired, well groomed, nicely dressed, driving a gold Mercedes convertible, having an American accent and being an owner of Pink Panther Printing in Glebe. He was taken to the offender's apartment in Pittwater Road, Collaroy.
On the occasion when the offender and SM were introduced, between 30 April and 11 June 1981, the victim was taken to the offender's upstairs bedroom at his house in Bellevue Hill. The offender kissed SM with an open mouth and fondled his penis. The offender removed SM's clothing and SM undid the offender's zipper and placed the offender's penis in his mouth. The offender penetrated SM's anus with his penis for about twenty minutes until he ejaculated.
Shiel recalls taking the victim to this house. Shiel says that the first evening SM met the offender, that SM went upstairs with the offender and "SM, being young, was keen to give me a full description of what took place." The disclosure included anal intercourse.
COUNT 4
On an occasion during the period from 27 August to 1 November 1981, Shiel took SM to the offender's Bellevue Hill house where, in an upstairs bedroom, the offender kissed SM and masturbated him, had SM masturbate him and penetrated SM's anus with his penis. The offender paid money to John Shiel or the victim.
Shiel later told the victim that "Mitch" had gotten married and was going to have a "normal" life. SM didn't see the offender for about a year.
FORM 1
In the summer of 1982-3, when SM was still in primary school and aged eleven or twelve years, he was taken to a house at Harbord owned by an associate of Shiel's, named PE, to whom the victim had often been exposed. The offender also went there. There had been discussions about the offender's marriage that took place later that year. In a hallway, the offender kissed SM on the mouth and groped his penis with his hand through SM's clothes. The offender also had SM grope his penis with his hand through the offender's clothes. The victim states that he felt powerless and had no control to be able to stop it. He knew it was wrong, but could not tell anyone as Shiel had threatened him. The victim describes feeling brainwashed by Shiel, and says he "had gone from a sport-loving normal young boy who had dreams and goals in life to look forward to, and suddenly felt trapped in this horrible situation that I felt I couldn't get out of and didn't know how to".
AS
AS was born on 5 September 1972. As a child, he was groomed to have sex with adult men by his uncle, PS. PS is now deceased, having committed suicide when he was investigated by police for similar offences in 1997.
John Shiel spent time with PS and they were part of the same set of associates.
The victim described the offender (in his 1996 statement) as having dark hair, wealthy, wearing jewellery, having a red Mercedes convertible and a unit at the northern beaches. After making the statement to police in 1997, the victim conducted an Internet search that year on the history of Pink Panther and found the name "Mitchell Fox". He immediately recognised the name and remembered that he had called the offender "Mitch". He also remembered that the offender had an American or Canadian accent.
AS was groomed for sexual activity by and with his uncle and to take part in sexual activity with adult men. He knew that he was expected to take part in sexual activity with men, including the offender.
On three occasions between 27 August 1981 and 1 January 1985, AS went to the offender's unit at Collaroy. His uncle PS took him there.
COUNT 5
On one occasion the offender placed his mouth on AS's penis and had AS take his penis into his mouth until the offender ejaculated.
FORM 1
On another occasion the offender again placed his mouth on AS's penis and had AS take his penis into his mouth until the offender ejaculated.
COUNT 6
On an occasion between 13 July 1981 and 1 January 1985 AS was taken by his uncle PS to a wharf at or near Birkenhead Point, Rozelle, and then on a motor cruiser marked "Skipper a Clipper" on Sydney Harbour. He recalled that the man was someone high up in Pink Panther printing. When he complained to police about this in 1996, he said he did not know this man's name. There was another boy present. PS and the other boy went out on a dinghy. AS and the offender were on a bed and the offender incited AS to masturbate him.
FORM 1
On an occasion between 13 July 1981 and 1 January 1985, AS was taken to a wharf at or near Akuna Bay and then on a motor cruiser marked "Skipper a Clipper" on the Hawkesbury River, in which the offender incited AS to masturbate him.
COUNT 7
On an occasion towards the end of the period from 31 December 1980 to 8 June 1984, AS was taken to the offender's house at Bellevue Hill, where, in a bedroom in the house or in a room near the pool, the offender fondled his penis and procured AS to suck his penis until the offender ejaculated.
The victim describes how, by the time he was introduced to the offender, he was "already sexually conditioned, I knew what was expected of me and how I was to behave in the presence of [this man]".
LATER CONTACT BETWEEN THE OFFENDER AND JOHN SHIEL
In 1996, John Shiel was investigated in relation to a complaint made by AS (and another victim). He spoke to the offender, who spoke about his sexual contact with SM and AS and was "far more concerned than I was due to the fact that he had had sexual contact with AS on three or four occasions".
SERIOUSNESS OF THE OFFENCES
Counts 1, 2, 3 & 4 - Buggery - s 79 of the Act - The offence of buggery required the penetration of the anus of a female or male of any age by a penis. It was a totally prohibited act of sexual intercourse, which in certain circumstances is no longer prohibited and s 79 was later repealed. Such sexual conduct with a child would now be dealt with under different provisions of the Act. However, the community has always regarded such sexual conduct with a child as abhorrent and very serious.
There is some uncertainty as to the age of the victim at the time in respect of PH. Count 1 - thirteen to fifteen years of age; Count 2 - twelve to fifteen years of age. SM was ten years of age at the time of Count 3 and eleven years of age at the time of Count 4. Whatever the precise age of PH may have been at the time of the individual offences, he was a vulnerable child because of his youth, as was SM.
They were also vulnerable because of their prior grooming by others through whom the offender accessed them and of which he was aware. Indeed, their prior grooming and consequent compliant acquiescence for the offender's deviant sexual gratification was clearly an attractive quality to the offender, to whom they were a mere sexual commodity for which he was prepared to pay.
Accordingly, these are each very serious offences or, to use the Crown's expression, of the "utmost gravity".
When sentencing in respect of Count 4, the Court is asked to take into consideration a further offence against SM of Indecently Assaulting a Male contrary to s 81 of the Act. AS was taken to premises at Harbord by a paedophile associate of John Shiel. The offender was also in attendance at those premises. In a hallway of the premises, the offender kissed AS on the mouth and groped AS's penis through his clothes with his hand. The offender had AS similarly grope the offender's penis through his clothes. There is nothing in the facts to suggest that this was anything other than an unfortunate coincidence of attendance by AS and the offender of which the offender took opportunistic advantage. Apart from AS's age at the time, eleven, the offence falls into the least serious category of offending conduct within the range prohibited by this section. [See later comments in respect of Count 7]
Count 5 - Assault and Commit Act of Indecency on Victim under Sixteen years of age - s 61E(1) of the Act - The offender placed his penis in the mouth of AS until ejaculating, and placed his mouth on AS's penis.
AS was nine to twelve years of age at the time, even at the oldest it was significantly less than the maximum age of the victim of sixteen years of age, at which point the offence would have fallen under a different provision carrying a lesser sentence. That is, while the section takes into account the victim's age, AS was substantially below that age, increasing the seriousness of the offence.
The act or acts of indecency would now come within the definition of sexual intercourse, which indicates that the community now takes a more serious view of such offending conduct than it did at the time of this offence. However, within those acts that would have constituted acts of indecency at the time, "oral intercourse" was a more seriously regarded form of offending conduct. For example, other conduct of a less serious nature that was covered by the section included the touching of the genitals or anus of a male or female either directly or through clothing.
AS was vulnerable because of the prior grooming by PS, through whom the offender accessed AS, and of which he was aware. The prior grooming and consequent compliant acquiescence by AS for the offender's deviant sexual gratification was clearly an attractive quality to the offender, to whom AS was a mere sexual commodity.
Accordingly, this is a very serious offence within the range of offending conduct then covered by the section.
The Form 1 offence to be taken into consideration on sentencing for Count 5 is contrary to the same provision as Count 5 and the offending conduct is also the same. The comments already made in respect of Count 5 need not be repeated in the circumstances.
Count 6 - Incite an Act of Indecency with Himself by a Victim Under Sixteen years of age - s 61E(2) of the Act - The offender incited AS to masturbate the offender.
AS was nine to twelve years of age at the time, even at the oldest he was significantly less than the maximum of sixteen years of age relevant to s61E(2). That is, while the section takes into account the victim's age; AS was substantially below that age, increasing the seriousness of the offence.
An offence of inciting an act of indecency which involved an act of physical contact by the victim with the offender's penis, even though by hand, must be regarded as more serious than most other possible forms of offending behaviour to which this section applies.
AS was vulnerable because of the prior grooming by PS, through whom the offender accessed AS, and of which he was aware. The prior grooming and consequent compliant acquiescence by AS for the offender's deviant sexual gratification was clearly an attractive quality to the offender, to whom AS was a mere sexual commodity.
Accordingly, this is a very serious offence, although not the most potentially serious offence within the range of offending conduct covered by the section.
The Form 1 offence to be taken into consideration on sentencing for Count 6 is contrary to the same provision as Count 6 and the offending conduct is also the same. The comments already made in respect of Count 6 need not be repeated in the circumstances.
Count 7 - Indecent Assault on a Male - s 81 of the Act - The offender fondled AS's penis and procured AS to suck the offender's penis until the offender ejaculated.
The section refers to indecent assaults upon males of any age. AS was nine to eleven years of age at the time. The offending conduct of penile penetration of the mouth of the victim is now defined as an act of sexual intercourse and is the subject of a far more serious sentencing regime. However, the community has always regarded sexual conduct - let alone oral intercourse - with a child as abhorrent and very serious. It is made more offensive by the further degradation inflicted by ejaculation.
An indecent assault involving an act of physical contact with the victim's mouth by the offender's penis must be regarded as more serious than most other possible forms of offending behaviour to which this section applies. For example, other conduct that was covered by the section of a less serious nature included the touching of the genitals or anus of a male or female either directly or through clothing.
SERIOUSNESS AND THE COURSE OF CONDUCT
The offences were part of a continuing course of offending conduct over a significant period of time, approximately five years, by an intelligent and successful businessman. He had ample time to reflect upon the harm he was doing to his victims, and the likely future adverse impact on them of their future realization of the horrendous way in which they had been groomed and trained to acquiesce in being sexually abused by uncaring sexual deviants like him. The offender loses the benefit of any leniency that may have been afforded to him on the basis that the offences were part of an isolated incident: JCW (2000) 112 A Crim R 466.
The offender cannot hide behind the uncontested fact that the victims were groomed to be compliant and uncomplaining by others. His offending conduct took advantage of that fact and assisted in creating a market, paid or unpaid, for sexually abused children and encouraged the continuing degradation of the victims and the recruitment of future victims.
In the course of submissions on sentence, Mr Glissan QC, appearing for the offender, has sought to diminish the significance of the offender's conduct by referring to the victims as having "consented" or "consenting" to the offending behaviour. In the sense that in their contact with the offender they were not verbally or physically threatened by him and did not say "No" or physically resist, that is correct. However, "consent", or what I would refer to as naïve compliant acquiescence, is not a mitigating factor, as children are to be protected from sexual conduct even if they are willing participants. This is particularly so in cases involving young children. In this case, the child victims were only willing participants because their worlds had been so warped by previous paedophile grooming of which the offender was fully aware and relied on. "Consent" or "naïve compliant acquiescence" in this case does not mitigate the seriousness of the offence or the moral culpability of the offender.
VICTIM IMPACT STATEMENTS
Each of the victims gave a Victim Impact statement which they read in Court. The statements were impressive and eloquent testimony to the very serious psychological consequences that offences such as these against children must have, particularly where they do not realize until reaching greater maturity the seriousness of the conduct that they had been deceived and manipulated to acquiesce in. The commission of these offences has very substantially impacted on their lives and the psychological consequences are perhaps unlikely to ever be resolved.
It must be noted that their statements canvassed matters outside those permitted in a Victim Impact statement. No objection was taken to that course on behalf of the offender on the basis that the Court would have regard to only that which is permitted and that it would assist the victims to be able to express themselves without limitation. Indeed, it is not reasonable to expect that victims abused by so many other than the offender over significant periods of time could somehow confine themselves to the impact of this offender's conduct. The Court regards the concession as significant, appropriate and of assistance.
In addition, as was said by Howie J in R v Palu (2002) 134 A Crim R 174 at [37]:
"The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (unreported, CCA, NSW, No 60738 of 1993, 19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: R v Henderson (unreported, CCA, NSW, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim."
Relevant to the Victim Impact statements was the appropriate acknowledgement in advance by Ms K. Shead, Crown Prosecutor, that the Victim Impact statements to be given would not take the impact in respect of any of the victims beyond what could reasonably be expected to occur in respect of offences of this nature against children.
SUBJECTIVE MATTERS
The offender did not give evidence on sentence.
Subjective matters have been drawn from the Pre-Sentence Report of Marta Mayayo, Probation and Parole Officer, dated 2 May 2011 [part of Exhibit 1] and the witnesses called on behalf of the offender and various reports and testimonials tendered [part of Exhibit 2].
Exhibit 1 contains a criminal history that indicates that the offender has never been convicted of any offence in New South Wales. The Court accepts, the offender having been born and raised in the United States of America, that he has no history of criminal offending other than these matters.
The evidence called on behalf of the offender was from:
Gerard Phillip Webster
- Forensic Psychologist providing counselling to the offender since June 2009.
- A co-worker at IBM since 1973, a business partner since 1982 and a de facto partner since late 1982, they commenced to cohabit, not at his premises in either Bellevue Hill or Collaroy, but at Hunters Hill in December 1982 prior to their marriage on 23 July 1983. Before they separated in 1990 there were two daughters born of the marriage.
- An employee of the offender from the age of fifteen in 1973 and later friend.
- A friend of the offender since Mr Whitford was aged fifteen, approximately forty years ago, the offender being also a family friend in the United States of America. He worked for the offender when aged seventeen in the offender's printing business at Kings Cross, Sydney. Married with four children, girls now aged fifteen, twelve and nine and a boy nine years of age, he has had ongoing contact with the offender in the intervening period and they have shared family holidays. He spoke at the United Nations "Global Impact Conference" in respect of labour rights and international issues regarding child labour. He is a member of the Pasadena Boys and Girls Club in the US, which assists 30,000 underprivileged children. He, together with his wife started a charity called "Chances for Children" which assists underprivileged children in the US.
Carol Mary Fox
Glen James Ford
Peter Duncan WhitfordIn addition a number of expert reports have been tendered:
W. John Taylor
- Forensic Psychologist - dated 17 April 2011.
- Forensic Psychologist as previously referred to - dated 27 April 2011.
Gerard WebsterAlso tendered was a Letter of Confirmation of Treatment from a Dr Ron Morstyn - Psychiatrist - dated 21 March 2011. It is convenient to note at this point that the letter merely confirms that the offender was a patient of Dr Morstyn for "psychiatric treatment (psychotherapy)" from 11 November 1996 until 24 December 1999 and from 1 May 2008 to 23 April 2009 on a weekly basis. The letter contains no information as to what the treatment was for or what effect it may have had. As there is no report from Dr. Morstyn, the letter is off no real assistance to the Court.
In addition there are seventeen character testimonials from friends, business associates, the offender's two daughters and fellow participants in "men's groups". Also included are written testimonials from Mrs C. Fox, Mr P. Whitford and Mr G. Ford, and a report from Mr G. Webster, as referred to above.
The offender was thirty-six to forty-one years of age during the five-year period in which the offences were committed. He is now sixty-eight years of age. He was born in the United States of America in 1943 and migrated to Australia in 1971. His parents are deceased, as is one of his three siblings. His childhood was uneventful other than at the age of fourteen he is said to have been sexually abused by a three or four year older friend of his older brother on numerous occasions.
He was financially well supported but described himself as not being emotionally supported by his parents. It appears from the Pre-sentence Report that it was to deal with this issue that he received psychotherapy from Dr Morstyn and because the psychological report from Mr G. Webster indicates that treatment by Dr Morstyn ceased because he was "not willing to discuss Mr Fox's history of sexual abuse against minors in a specific manner".
It is noted that Mr Webster states:
"Mr Fox had attempted to address his relationship difficulties and child sexual abuse in multiple courses of treatment crossing a range of interventions in vogue from 1982. Mr Fox had not tabulated his entire history at the time of (self) referral but he has done so more recently. Mr Fox has provided me with a list of 18 separate psycho-education and treatment interventions, commencing with seminars presented by an internationally renowned psychiatrist, Dr Elisabeth Kubler-Ross. It is noted that according to the evidence before the Court about the period of his offending, Mr Fox was actively seeking psychological help at a time that he was abusing boys. From discussions with Mr Fox, he was denying the harmful impact of his sexual offences on his victims at the time the crimes were committed. He thought that he was giving them as much pleasure as they were giving him. This is a typical cognitive distortion for many offenders. It was only after a period of years of personal reflection that he came to recognise that the boys would have been harmed just as he had been when he was abused as a young adolescent".
Contrary to Mr Webster's anticipation of what evidence would be before the Court, there is no evidence that at the time of the offending Mr Fox was actively seeking psychological help, or if he was, that it related to his then offending behaviour. The Court does, however, accept in view of the cessation of offending, either relatively shortly before or after significantly changing his lifestyle by marrying in 1983 that the offender was seeking to address his offending conduct.
That he did so appears to indicate that he was in fact fully cognisant of the harmfulness of his conduct at the time of his offending, no matter how he may have sought to rationalize it. In the circumstances, including that he has not given evidence on sentence so that the Court could make its own assessment, it is not possible to accept his assertion to Mr W. John Taylor, psychologist, that "at the time of committing the offences he did not consider it to be wrong and he said that 'I had zero awareness'". It may provide some explanation for the conduct but it does not excuse it, particularly when it continued for five years, and was apparently hidden from all others except those who engaged in the same deviant behaviour, or could supply children to satisfy his sexual desires.
That he was sexually abused as a child has some relevance in mitigation but the weight to be given to this circumstance will depend on the facts of the individual case: AB (1999) 198 CLR 111; Totten [2003] NSWCCA 207. On the facts asserted by the offender, it seems that he engaged in a mutually exploratory homosexual act with an older but young partner at age fourteen or fifteen and found the experience enjoyable. Any mitigation from such an event is limited and greatly outweighed by the need for general deterrence.
The offender has been in treatment with Mr Webster since June 2009 relevant to the offending conduct.
The offender has been married twice and has three children, daughters now aged twenty-seven and twenty-four from his first marriage to Carol Fox and a fifteen year old son from his second marriage in respect of whom he shared custody until being refused bail.
After completing school in the United States he attended University and graduated with a degree in applied science specialising in printing and printing management. In 1972, he commenced his own printing company in Australia, Pink Panther Printing, which he sold in 1983. Since that time he has been engaged in property development.
In respect of the evidence called on character and the seventeen testimonials from friends, business associates, the offender's two daughters and fellow participants in "men's groups", it is appropriate by way of summary, without endeavouring to diminish the scope or high quality of that material, to observe that the offender has been held in very high esteem in the past and continues to be held in high esteem, including by many that he closely associated with at the time of committing the offences while hiding from them his true character.
The offender has no criminal convictions.
Good character, however, is of diminished significance, but not insignificant, where the offending conduct was carried out over such an extensive period and where the offences are, as here, by a mature and intelligent adult against children.
REMORSE AND CONTRITION
While a number of the testimonials and reports make reference to the offender expressing remorse, the Court is unable to form an opinion as to the extent of remorse where the offender did not give evidence. Any expression of remorse referred to has been made only after entering the pleas of guilty. A plea of guilty in itself is not necessarily evidence of remorse, particularly where it comes at the doorstep of trial. The Court accepts that the offender has accepted by the plea responsibility for his actions.
REHABILITATION AND RISK OF RE-OFFENDING
The Court accepts that the offender has made efforts to rehabilitate himself by obtaining treatment at least from Mr Webster, if not also treatment or assistance in the past, as referred to by Mr Webster.
The fact that there has been no further offending and that the offender substantially changed his lifestyle a very substantial period of time ago indicates that he has been able to change or control the impulse to offend in this manner. Taking that into account, together with his current age, the Court accepts that there has been substantial rehabilitation by his own efforts and that the risk of re-offending is low. The Court notes, however, that the evidence of Mr Webster in cross-examination was that despite all the therapy, he was in danger of relapse, like all sex offenders, and that he would be more vulnerable at times of anxiety and stress. These factors reduce the need for specific deterrence and are relevant to consideration of a variation in favour of the offender in the statutory relationship between the non-parole period and the balance of term by a reduction in the non-parole period to ensure that on release the offender is assisted by a longer period of supervision than would be the case if the statutory relationship was maintained.
SENTENCE CONSIDERATION
For the purposes of sentencing, I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. I must take into account such of the aggravating factors outlined in s 21A(2) of that Act as are present, and such of the mitigating factors referred to in subs (3) of that section as are present, and any other relevant factor. In sentencing an offender, the sentence must reflect the objective seriousness of the offence and the sentencing judge must fix a sentence that will ensure the time the offender must spend in custody reflects all of the circumstances of the offence including the objective seriousness and the need for general deterrence and specific deterrence, and meet the fundamental purpose of punishment, the protection of society.
I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. It is clear that the sentences to be imposed in respect of such serious offences as these must be terms of full time imprisonment. The parties are in agreement with that conclusion and their submissions have accepted such sentences as inevitable.
The offender was refused bail on 29 April 2011 and has been in custody since that time and only in respect of these offences. The sentence will backdate to 29 April 2011.
The offender has been held under a Protective Custody Direction (AKA Protected Limited Association) both because of the nature of the offences and at his request. A letter from W. McPhillips, Manager of Security, Metropolitan Remand and Reception Centre, states that although there are limited work opportunities at MRRC there are no restrictions on visits, education or any other program services. The time out of the cell has been limited to two to three hours; the general population at MRRC receive up to six hours. Once classified he will be moved to another gaol where his hours out of the cell will be increased and greater work opportunities will be available. On that evidence there has been little or no hardship, other than the reduced hours out of the cell and as to the future it appears that continuation of protection may be terminated on the offender's request.
In Clinton [2009] NSWCCA 276 it was stated:
"In any event, decisions about the significance of protective custody given before R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 should be read in the light of that decision and the different approach that was then taken to the relevance of the fact that a person was in protective custody. The change to the approach previously taken was as a result of information provided to the Court that revealed that protection did not necessarily result in harsher prison conditions. That change in approach was continued in R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304, was approved in R v Way [2004] NSWCCA 131; 60 NSWLR 268 at [177] and has been applied to cases where assistance has been given to authorities: R v Sukkar [2006] NSWCCA 92."
Where harsher conditions of protection are proved, that is a matter taken into account in determining the length of the term on the basis that the offender may not be released to parole. If it is taken into account in that way, it automatically has an effect on the non-parole period because of the statutory relationship between the non-parole period and the total term. It should not be taken into account again in a finding of special circumstances because it is in effect double counting: see R v S [2000] NSWCCA 13 at [33].
Although no real hardship has been proved the Court recognizes that because of the nature of these offences such offenders tend to be badly treated within the prison system by other prisoners. It is accordingly likely that the offender may remain in protection.
While in this matter the Court finds, in view of rehabilitation and the low risk of re-offending, that specific deterrence is a much less important factor on sentence than it would normally be, the sentences must reflect the need for general deterrence. General deterrence is of great importance in respect of offences of this nature committed against children. They are frequently not reported until many years later when the then adult victim manages to overcome the self-loathing arising from naïve participation and the fear of the consequences of disclosure to their own psychological health.
There has been a significant delay between commission of the offences and sentencing. In MJR(2002) 54 NSWLR 368 it was held that where, by reason of delay, an offender is exposed to a harsher punishment and sentencing regime than that which existed at the time of the offence, and if an authentic and credible body of statistical material exists that is capable of reconstructing what would have been done previously, then the approach outlined in Shore (1992) 66 A Crim R 37 should be adopted.
In Shore Badgery-Parker J at [42] said:
"In my opinion I should, so far as I am able to do so, seek to impose upon the offender a sentence appropriate not only to then applicable statutory maxima but also to then appropriate sentencing patterns. That is by no means easy, but in my view I must endeavour to do so."
In the absence of such statistical material, the Court is constrained to take the non-statistical approach as described by Howie J in Moon (2000) 117 A Crim R 497 at 511, and approved by Sully J in MJR at [107] and endorsed by Spigelman CJ at [31].
Where considerable delay has occurred before sentencing, the sentencing judge must have regard to the maximum sentence and the level of sentences in fact imposed at the date of the offence.
The Crown has provided such limited statistics as are available and both parties have referred the Court to a number of cases. However, as indicated, the statistics are very limited and the Court has found them of little assistance. All of the cases to which the Court was referred have been considered. Individual cases turn on the individual facts and subjective circumstances. The cases referred to have been of some general assistance in determining the general sentencing pattern at the time.
A matter of particular importance is referred to in Featherstone [2008] NSWCCA 71 by Bell JA, Adams and Latham JJ agreeing, at [33] to [47] referring to the general increase in sentences since the early eighties and the significant difference of non-parole periods under the then current legislation falling into a range of 33% to 50% of the total sentence, and now being 75% pursuant to the current provisions. The Court held that the change in the relationship of the non-parole to the total term was in itself sufficient to justify a finding of special circumstances so that the non-parole period for an old offence would more appropriately reflect the pattern of sentencing at the time of the offence.
The Court will sentence the offender on the basis of what it understands to be the general sentencing pattern at the time of the commission of the offences.
The Court has also taken into account that this is the first time that the offender will be subject to a term of imprisonment and has also provided the 12.5% discount for the utility pursuant to the Conferencing Act as previously referred to.
Mr Fox, would you please stand? I will deal with the sentences in a different order to the order of the counts in the indictment, commencing with Count 6 and continuing 7, 5, 1, 2, 3 and 4.
In respect of Count 6 and taking into account the offence contained on the Form 1, you are sentenced to a fixed term of imprisonment of six months commencing on 29 April 2011 and expiring on 28 October 2011.
In respect of Count 7, you are sentenced to a fixed term of imprisonment of nine months which will commence three months after the commencement of the last imposed sentence, that is, it will commence on 29 July 2011 and expire on 28 April 2012.
In respect of Count 5 and taking into account the offence contained on the Form 1, you are sentenced to a fixed term of imprisonment of one year to commence six months after the commencement of the last imposed term of imprisonment, that is, it will commence on 29 January 2012 and expire on 28 January 2013.
In respect of Count 1, you are sentenced to a fixed term of imprisonment of eighteen months to commence six months after the commencement of the last imposed term of imprisonment. It will commence on 29 July 2012 and expire on 28 January 2014.
In respect of Count 2, you are sentenced to a fixed term of imprisonment of eighteen months commencing six months after the last imposed term of imprisonment. It will commence on 29 January 2013 and expire on 28 July 2014.
In respect of Count 3, you are sentenced to a fixed term of imprisonment of eighteen months. It will commence six months after the commencement of the last imposed term of imprisonment, that is, it will commence on 29 July 2013, and it will expire on 28 January 2015.
In respect of Count 4 and taking into account the further offence on the Form 1, you are sentenced to a total term of imprisonment of six years and three months. It will commence six months after the last imposed term of imprisonment. Having found special circumstances, as indicated, the non-parole period will be one year and nine months commencing on 29 January 2014 and expiring on 28 October 2015.
The balance of term is four years and six months commencing 29 October 2015 and expiring on 28 April 2020. You will, accordingly, Mr Fox, first be eligible for parole on 28 October 2015.
The overall effective accumulated non-parole period is one of four and a half years from 29 April 2011 and the balance of term is four and a half years, that is, the overall total accumulated sentences are nine years, that is, the accumulated non-parole period is 50% of the overall term.
I recommend that when released on parole the offender be subject to supervision by the Probation and Parole Service in particular with respect to sexual offending, counselling and/or treatment.
Mr Fox, when released on parole if you are in breach of the then conditions of your parole you will, of course, end up being returned to custody. You can sit down, thank you.
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