R v Greenaway

[2020] NSWDC 97

District Court

New South Wales

Medium Neutral Citation:	R v Greenaway [2020] NSWDC 97
Hearing dates:	11 June 2019 - 30 September 2019; 6 December 2019; 7 February 2020
Date of orders:	09 April 2020
Decision date:	09 April 2020
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	Aggregate term of imprisonment for 20 years. For orders see [92].
Catchwords:	Historical sexual and physical offences – offences committed within institutional setting – multiple victims - offending more serious because of abuse of authority – advanced age and declining health of offender –special circumstances – imprisonment.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Child Welfare Act 1939
Cases Cited:	Brown v R [2020] VSC 60 EG v R [2015] NSWCCA 21 Elchiekh v R [2016] NSWCCA 225 Hornhardt v R [2017] NSWCCA 186 Hughes v R [2017] HCA 20 Magnuson v R [2013] NSWCCA 50 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120 O’Sullivan v R [2019] NSWCCA 261 R v Achurch [2011] NSWCCA 186 R v BJW [2000] NSWCCA 60 R v Cattell [2019] NSWCCA 297 R v Cattell [2019] NSWCCA 297 R v Moon (2000) 117 A Crim R 497 R v Sopher (1993) 70 A Crim R 570 R v Spiers [2008] NSWCCA 107 R v Todd [1982] 2 NSWLR 517 R v Van Ryn [2016] NSWCCA 1
Texts Cited:	Royal Commission into Institutional Responses to Child Sexual Abuse
Category:	Sentence
Parties:	Regina (Crown) Noel Greenaway (Offender)
Representation:	Counsel: Ms M. Millward (Crown) Mr S. Harben SC, Mr J. Hale (Offender)   Solicitors: Ms K. Goninen (Crown) Mr D. Wakim (Offender)
File Number(s):	2016/168561
Publication restriction:	Non Publication Order with respect to the names of the complainants or any information that may identify them.The victims have been anonymised for the purpose of the judgment.

JUDGMENT

1. Noel Greenaway, born in October 1937, appeared for trial at the Sydney District Court on 11 June 2019. The trial took place in June, July, August and September 2019.

2. On 30 September 2019, after a majority verdict direction, the jury found the offender guilty of counts 2, 3, 6, 7, 9, 11, 12, 14, 16, 18, 20, 21, 22, 23, 24, 25, 26 and 28 on the indictment, namely:

1. Four counts of common assault contrary to s 61 of the Crimes Act 1900;

2. Three counts of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act 1900;

3. Four counts of indecent assault on a female contrary to s 76 of the Crimes Act 1900;

4. One count of indecent assault on a female under 16 years contrary to s 76 of the Crimes Act 1900;

5. Five counts of rape contrary to s 63 of the Crimes Act 1900; and

6. One count of buggery contrary to s 79 of the Crimes Act 1900.

3. I convicted the offender of those counts on 30 September 2019.

4. On 19 September 2019, on the Crown’s application, I directed the jury to enter verdicts of not guilty with respect to counts 4, 5, 8 and 10 on the indictment, as there was no evidence presented to support those counts. They were:

1. Two counts of indecent assault on a female contrary to s 76 of the Crimes Act 1900; and

2. Two counts of common assault contrary to s 61 of the Crimes Act 1900.

5. On 20 September 2019, the offender was found not guilty by the jury with respect to counts 1, 13, 15, 17, 19 and 27 on the indictment, namely:

1. One count of indecent assault on a female contrary to s 76 of the Crimes Act 1900;

2. Three counts of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act 1900;

3. One count of rape contrary to s 63 of the Crimes Act 1900; and

4. One count of common assault contrary to s 61 of the Crimes Act 1900.

6. Due to the multiplicity of offences, it is convenient to use a table to describe each offence, the offence creating provision and the applicable maximum penalty. There are no applicable standard non-parole periods for the offences.

Count	Charge	Maximum penalty
Counts 2, 3, 14, 16	Common assault – s61 Crimes Act	2 years imprisonment
Counts 12, 18, 20	Assault occasioning actual bodily harm – s59 Crimes Act	5 years imprisonment
Counts 6, 7, 9, 11	Indecent assault on a female - s76 Crimes Act	3 years imprisonment
Count 23	Indecent assault on a female under 16 years – s76 Crimes Act	5 years imprisonment
Counts 21, 24, 25, 26, 28	Rape – s63 Crimes Act	Penal servitude for life
Count 22	Buggery – section 79 Crimes Act	14 years imprisonment

7. The offender is to be sentenced for his offending against five different victims. The offences were committed over two periods. With respect to four of the victims, the offences were committed at Parramatta Girls Training School (PGTS) between 1965 and 1967. The offences with respect to one victim were committed at the Ormond School at Thornleigh (Ormond) between 1971 and 1973.

Findings of Fact

8. There is a dispute between the parties as to what findings of fact I should make beyond reasonable doubt. The two issues raised are whether the uncharged acts committed by the offender upon GH are proved beyond reasonable doubt and how the court should approach fact finding with respect to the ages of the victims at the time the offences were committed.

9. The Crown acknowledges that it was not necessary for the jury to make findings in relation to the uncharged acts allegedly committed by the offender which were relied upon as tendency evidence, and that it follows that the jury’s verdict does not expressly decide those facts. She submitted, however, that the task of a sentencing judge in relation to fact-finding is not limited to those facts decided by the jury’s verdict. It is the case that I must make an assessment of all of the evidence.

10. The offender says that Mr Greenaway is not to be sentenced for conduct for which was not charged. So much is evident. I sentence him only for the charges for which he was found guilty.

11. With respect to the age of the victims at the time the offences were committed, the Crown acknowledges that in some cases the evidence does not permit a finding as to when during the period of an admission to PGTS or Ormond the offences took place, and therefore in relation to victims who had a birthday during that admission, the precise age of the victims. The issue does not arise in relation to the offences committed against AB, CD or EF. It also does not arise in relation to counts 23 and 24 in relation to JK, as her evidence connecting the timing of those offences to an operation she had to remove a tattoo, allows me to confidently find that she was 13 years old at the time of those offences.

12. With respect to the remaining offences against GH and JK, the Crown accepts that the evidence does not support a precise finding as to whether GH was 16 or 17 years old at the time of the offending. Likewise it is not possible to determine whether JK was 13 or 14 years of age for the purposes of count 26, or 14 or 15 years of age for the purposes of count 28. The Crown acknowledges that the offender is entitled to be sentenced on the basis that the victim was the older of the two possibilities.

13. I find the following facts:-

1. The offender was born in October 1937. He completed his schooling in 1952 after attending Parramatta High School for 3 years. He then worked on the land with his parents who owned a number of dairy farms. In 1956 the offender successfully completed the public service entrance examinations and joined the public service. He was first employed as a clerk in the State Lottery office.

2. PGTS was an institution operated by the Department of Child Welfare (the Department). It housed teenage girls committed to the institution by an order of a court. Many of the young girls committed to PGTS (and other like institutions throughout the state including Ormond and the Hay Institute for Girls) were committed on charges of being “uncontrollable” or “neglected” so that they “were exposed to moral danger”.

3. PGTS was staffed by employees of the Department. The preponderance of staff was female. Females employees of the Department occupied roles including officer and senior officer. Their work was overseen by a female Matron and Deputy Matron. Three male administrative staff exercised authority in the day-to-day running of the institution.

4. Between August 1961 and December 1962, the offender commenced work at PGTS a clerk. In March 1963, after a period of field training, the offender was promoted to the role of District Officer of the Department and worked in a number of District Offices throughout Sydney.

5. On 11 November 1964, the offender commenced work as Relieving Deputy Superintendent at PGTS. He worked in that position until he was transferred to the Mount Penang Training School for Boys on 17 July 1967. At the time of the offender’s appointment to PGTS the male administrative staff comprised of a Superintendent, a Deputy Superintendent and a Relieving Deputy Superintendent. Percival Mayhew occupied the position of Superintendent from 16 November 1962 to 7 February 1971.

Offences against AB – counts 2, 3, 6, 7, 9, 11

6. AB was born in Brisbane in August 1949. She was raised by her father and grandparents. Her father was physically abusive towards her. She lived with her grandparents until their health deteriorated at which time she was moved by welfare authorities to St Bridget’s Hostel. She was later sent to a girls’ home in Brisbane before travelling to Sydney with another young resident.

7. AB was first admitted to PGTS on a charge of being neglected (exposed to moral danger) on 27 August 1965 before being formally committed to the institution on 8 September 1965. She remained there until her discharge on 17 March 1966.

8. Each of the offences committed by the offender against AB took place during the period 27 August 1965 to 17 March 1966.

9. One day during her admission to PGTS, the offender took AB to a cell. The offender, as AB said in evidence, “started to get smart with (her)”, pushed her, slapped her around the face and pulled her hair (count 2 – common assault). He told AB to get undressed before making her masturbate his penis. The offender was not charged in respect of the latter conduct and he is not being sentenced for it.

10. Later the same day, the offender took AB from the cell to the shower room. As she was showering, the offender tried to turn the shower off. He tried to kiss AB and pushed her head into the wall (count 3 – common assault). The offender then tried to put his penis into her vagina but she resisted, keeping her legs closed. The offender was not charged in respect of this latter conduct and he is not being sentenced for it.

11. On another occasion during her admission to PGTS, the offender took AB to a cell that was upstairs in a building. AB’s description of the location is consistent with it being one of two segregation cells which were located on the upper level of Bethel House. She was detained in the cell for a period of 4 or 5 days. It was common practice at PGTS at the time to detain inmates (as the girls at PGTS were referred) in segregation for periods that exceeded the 24 or 48 hour limit placed on isolated detention under the Child Welfare Act 1939.

12. On that day, when she was taken to the cell, (the first day) the offender and AB were in the cell alone. The offender told AB to get undressed, but she refused. He removed some of his clothes and told her to get undressed. She removed her uniform but left on her bra and underpants. The offender instructed her to take them off. She did. The offender started kissing AB. She told him to get away. The offender tried to insert his penis into her vagina (count 6 – indecent assault on a female). She kept her legs crossed which meant that he was unable to do so.

13. The offender then made AB masturbate his penis. He ejaculated onto her (count 7 – indecent assault on a female).

14. On the second or third day that AB was in the cell, the offender returned. AB said that she believed that when he returned, she was standing in a back corner of the cell. The offender pushed her to the floor and knelt in front of her. He rubbed his penis in between her breasts. As he was having trouble getting his penis between her breasts, he stood up and, with AB against the back wall, he continued to rub his penis up and down between her breasts. He did so until he ejaculated. He ejaculated onto both her face and breasts (count 9 – indecent assault on a female).

15. On the final day in which AB was detained in the segregation cell, the offender again returned. He made her strip off, using force to remove her clothes. AB fought against him. She kept her legs crossed and folded her arms but he was stronger. The offender lay her down on the mattress in the cell and made her suck his penis for a few minutes. He ejaculated into her mouth (count 11 – indecent assault on a female).

16. AB was 16 years of age at the time of each of the offences.

Offences against CD – counts 12, 14, 16

17. CD was born in September 1948. Shortly after her birth, she was adopted by a couple who had no children, and with whom she lived at a number of locations in Sydney.

18. CD was admitted to PGTS on two occasions. Her first admission was from 1 October 1965 until 3 April 1966. Her second admission took place between 16 August 1966 and 9 November 1966.

19. Each of the offences committed by the offender upon CD took place during her first admission between 1 October 1965 and 3 April 1966.

20. Shortly before Christmas 1965, CD was on the covered way and “talked back” to the offender. The offender grabbed her by the scruff of her neck, catching her hair in his hands as he did so, and pulled her up the covered way to a holding cell on the ground floor of the main building. The holding cell, or holding room as it was sometimes described, was located opposite the Deputy Superintendent’s office, which was the office occupied by the offender.

21. When they arrived at the holding cell, the offender punched CD a number of times on her chest and arms. The offender removed a set of keys from his pocket and struck her on the left side of her face. The blow caused a previous scar from a schoolyard accident to open up and bleed (count 12 - assault occasioning actual bodily harm).

22. On another occasion during the same admission, CD was walking from the (outside) toilet block towards the covered way when she was “got” in the back. She felt but did not see the impact. When she looked up, she saw the offender standing over her. He kicked her a number of times. As she went to get up, the offender pushed her down again. CD’s nose hit the pavement causing it to bleed. The offender kicked her again. When he let CD get up, he called her a slut and walked off towards the covered way (count 14 – common assault).

23. The offender was found not guilty of a charge of assault occasioning actual bodily harm (count 13) in respect of the assault described at [22]. I find, consistent with the jury’s verdicts, that the injury described by CD (a bleeding nose) occurred, but that the jury was not satisfied beyond reasonable doubt that it amounted to actual bodily harm.

24. On another occasion during her first admission, CD was instructed to attend upon administrative staff after talking at muster. She walked into an office in the main building to find the Superintendent, Mr Mayhew, having sexual intercourse with an unidentified female inmate. Mr Mayhew yelled at her, and she ran out of the office. She sat on the covered way for a period before going to the dining room.

25. The offender approached CD in the dining room. He pulled her by the arm back to the main building and into the Deputy Superintendent’s office. There, Mr Mayhew punched her in the stomach. Both men hit her, the offender to the back of her head. The offender then held CD’s hands behind her back and Mr Mayhew punched her in the face causing her nose to bleed. The offender let her go and she fell forward. Mr Mayhew threatened her before she was dragged out of his office (count 16 – common assault).

26. The offender was found not guilty of a charge of assault occasioning actual bodily harm (count 15) in respect of the assault described at [25]. I find, consistent with the jury’s verdicts, that the injury described by CD (a bleeding nose) occurred, but that the jury was not satisfied beyond reasonable doubt that it amounted to actual bodily harm.

27. CD was 17 years old at the time the offender committed the assaults upon her.

Offence against EF – count 18

28. EF was born in January 1950. EF suffered abuse at the hands of her father and was made a state ward when she was 14 years old. She lived with her grandmother for a period in Blacktown and had ongoing contact with the Department.

29. EF was admitted to PGTS twice. Her first admission was from 28 July 1965 until 1 April 1966. Her second admission was commenced on 23 June 1966. She was pregnant at the time of her second admission to PGTS and was transferred to a home for pregnant girls, Myee Hostel, on 21 December 1966. EF did not return to PGTS, but remained at Myee Hostel until her formal discharge from that institution on 25 March 1967.

30. The offence the subject of count 18 on the indictment took place during EF’s second admission to PGTS, within the period 23 June 1966 and 21 December 1966.

31. On or about 8 July 1966, EF met with her assigned District Officer, Margaret Coleman, within the grounds of PGTS. Sometime after that meeting, EF was one of a number of inmates taking part in a cricket match next to the covered way. The offender joined in the game and struck the ball with the bat before walking off past EF. As he passed her, they had a short exchange of words. The offender became very angry and he hit EF in the face with a closed fist. The blow knocked her to the ground.

32. The offender advanced towards her, so EF got up off the ground and ran towards the dining room. In the dining room, he grabbed the front of her dress and punched her numerous times in the face. EF dropped to the floor. She had blood coming from her eyebrow. She ran out of the dining room and up the covered way. The offender caught up with her about half-way up the covered way, and dragged her up to the main building and down a flight of stairs to an area under the main building where she was detained for an extended period, which she believed to be about 3 weeks.

33. As a result of the assault by the offender, EF had blood coming from the outside of her left eyebrow and her eyes were so swollen that she could not see (count 18 – assault occasioning actual bodily harm).

34. EF was 16 years of age at the time of this assault.

Offences against GH – counts 20, 21, 22

35. GH was born in March 1950. Her mother died when she was about 13 years old. Her father cared for her briefly before he was committed to a mental health facility in Rozelle. In 1965, GH was made a ward of the state. Thereafter she was allocated a number of placements, before being arrested and charged with being neglected (exposed to moral danger).

36. GH was committed to PGTS on 7 September 1966. She was discharged on 8 September 1967. Each of the offences committed upon her by the offender took place during that period.

37. GH was “standing out” on the covered way. Standing out was a form of punishment used at PGTS which involved requiring inmates to stand still with their hands behind their backs for an assigned period (usually during recreation breaks). The offender called out to GH and motioned for her to come to his office. GH accompanied the offender to his office where he asked her what she had been doing in the dormitory. The offender said words to the effect of “you’re never going to learn” and called GH a slut before punching her in the mouth. The punch caused a cut to the inside of her bottom lip which bled (count 20 – assault occasioning actual bodily harm).

38. One evening during her admission to PGTS, GH was in the shower block cleaning the floors of the shower recesses. It was at night, after the girls had showered. The offender entered the shower room and spoke to her. She stood up. GH gave evidence that the next thing she remembers is that she was tied around the wrists with a red tie over the bench in the shower room. The offender pulled her bloomers down and penetrated her vagina with his penis from behind (count 21 - rape). GH cried as the offender raped her.

35. On another occasion sometime after the incident that took place in the shower room, GH was in the loft white-washing the walls as punishment. The loft was above the laundry, a detached building within the grounds of PGTS. There was no one else in the loft at the time. The offender came up to the loft and said something to her. He backed her up against the wall and turned her around. He pulled down her pants and inserted his penis into her anus. When he did so she cried. GH said that she believed that the offender pushed his penis in and out 2 or 3 times, and that when he last pulled his penis out of her anus, she lost control of her bowels. The offender swore and called out to an officer downstairs that GH had shit herself (count 22 – buggery).

36. GH gave evidence that she was sexually assaulted by the offender at least 12 times. He sexually assaulted her anally, vaginally, and digitally when she was in isolation, in the shower room and in his office. The first time the offender sexually assaulted GH was about 8 weeks after her admission to PGTS. She was sent to the holding room where the offender yelled at her and pushed her. The next thing she remembers is feeling pain between her legs and bleeding from her vagina. She had not been bleeding prior to entering the holding room. The offender told GH that she was worthless and that she was a slut. He sent her to the shower room and told her to tell the officer that she was menstruating. She did as the offender directed. The offender is not sentenced for this conduct.

37. The offender physically assaulted GH on other occasions. She gave evidence that “once, twice, maybe 3 times a week” the offender “would pull your hair, he would push you around, he would come up behind you when you’re standing out in the covered way because you had your legs apart and you’re standing at ease, he would sort of get in behind your knees to buckle you”. The offender is not sentenced for this conduct.

38. On one occasion during the period when the sexual abuse occurred, GH told the offender she was going to tell someone what he was doing to her. The offender replied, “Go ahead, you’re only a state ward, nobody will believe you, you’re a slut, you’re worthless, nobody wants you”.

39. GH was 17 years old when the offender committed the offences against her.

Ormond School at Thornleigh

44. Like PGTS, Ormond was an institution operated by the Department. At the relevant time it housed young girls, but it later became a co-educational institution. The staffing structure of Ormond was similar to that which existed at PGTS, with the exception that 1 of the 3 administrative staff held the position of Deputy Superintendent (Educational). That person was, in effect, the Principal of the school.

45. On 1 February 1971, the offender commenced work as the Superintendent of Ormond. He held that position until the institution closed on or about 6 November 1977.

Offences against JK – counts 23-26, 28

46. JK was born in March 1958 in Portland. In September 1970, at age 12, she was made a state ward and committed to the care of the Catholic Welfare Bureau. She ran away on 3 occasions. On the third occasion she was found by police and taken to Minda, a remand centre.

47. JK was committed to Ormond on 3 occasions. The details of those admissions are as follows:

1. First admission: 8 March 1971 to 29 October 1971;

2. Second admission: 18 February 1972 to 18 October 1972; and

3. Third admission: 21 December 1972 to 22 August 1973.

48. At the time of her first admission to Ormond, JK was 12 years old. She turned 13 shortly after her arrival.

49. One evening during her first admission, JK was taken by a female officer from the recreation room attached to the dormitory to the offender’s office in the main administration block. The female officer left her alone with the offender. The offender yelled at JK. As he came out from behind his desk, JK noticed that his penis was out of his pants. The offender took JK’s hand, placed it on his penis and made her masturbate him. He ejaculated onto her hand (count 23 – indecent assault on a female under 16 years of age). The offender then took JK to isolation where he locked her in a cell.

50. The following night, the offender entered the isolation cell where JK was still being detained. He had non-consensual penile-vaginal intercourse with her as she lay on the mattress (count 24 – rape). Immediately afterwards, the offender said words to the effect of “Don’t tell anybody. No one will believe you if you tell anybody”. When the offender left the cell, JK sat in the corner and cried. She scratched at a scab on the top of her left arm where a tattoo had been removed. The tattoo was removed during an operation performed at Hornsby Hospital on or about 9 August 1971.

51. JK was 13 years of age at the time the offender committed the offences at [49-50].

52. On 29 October 1971, JK was discharged from Ormond into the care of her sister. She lived with her sister for a period before running away, because she didn’t like “all the drinking in the house and a lot of men in the house”. JK ran away to Lithgow where she was spoken to by police and committed to Ormond for a second time in respect of a charge of being neglected (exposed to moral danger).

53. One day during her second admission, JK got into trouble on the quadrangle with another inmate. The offender sent her to isolation. She was taken to the isolation block by an officer and placed in a cell. The offender went to the isolation cell later that night, entered the cell in which JK was being held and sexually assaulted her without her consent by inserting his penis into her vagina (count 25 – rape). When he finished sexually assaulting JK, the offender told her that he could keep her in the cell for as long as he wanted.

54. On another occasion during the same admission, JK was scrubbing concrete when the offender approached her and kicked her bucket over. He told her to mop it up. She told him to mop it up himself. The offender placed her in isolation again. During the night, the offender entered the cell and inserted his penis into JK’s vagina having non-consensual penile-vaginal intercourse with her. As he did so, she was crying (count 26 – rape). When he finished, the offender got off JK, told her to clean herself up and said that if she ever told anyone that no one would believe her, because they all knew she was a liar.

55. JK was 14 years of age at the time of counts 25 and 26.

56. JK was discharged from Ormond for the second time on 18 October 1972. She was to live with a woman in Lithgow. She lived and worked in Lithgow for a period, before running away with a friend to Melbourne where she was arrested and charged with absconding from proper custody.

57. JK was admitted to Ormond for a third time on 21 December 1972. During this admission she was sent to isolation by a male member of the administrative staff, Mr Knight, for drinking vanilla essence that had been stolen from the stores by another inmate. At night, the offender went to the cell where JK was being held and had non-consensual penile-vaginal intercourse with her. When he finished, the offender told her to clean herself up and called her a filthy pig (count 28 – rape).

58. JK was 15 years of age at the time of count 28.

59. JK was discharged from Ormond for the third and final time on 22 August 1973.

60. Police conducted a search warrant at the offender’s home in Normanhurst on 17 December 2015. It was conducted in his presence and recorded on audio and video. During the search, the offender was asked by Detective Senior Constable Smallwood whether he was prepared to be electronically interviewed in respect of the allegations made against him. The offender declined to do so, but agreed to participate in a walkthrough at the grounds of PGTS and said that he would take the police through documents (but not in a formal interview). A walkthrough was conducted with the offender on 19 January 2016, which was video-taped.

61. The offender gave evidence in the trial. He denied having physically and/or sexually assaulted each of the victims. By their verdicts, the jury rejected the offender’s denials.

Exhibits

14. Before me are 3 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. A copy of the indictment as amended at trial;

2. The offender’s conviction history;

3. The offender’s custodial history;

4. A victim impact statement prepared by AB;

5. A victim impact statement prepared by EF;

6. A victim impact statement prepared by GH; and

7. A victim impact statement prepared by JK.

15. Exhibit 2 is a Sentencing Assessment Report (SAR) dated 7 November 2019 under the hand of Kerry-Anne Troeger.

16. Exhibit 3 includes Justice Health and Corrective Services NSW Records:

1. An Intake Screening Questionnaire dated 3 October 2019;

2. A patient self-referral dated 2 November 2019;

3. A Falls Risk Assessment dated 6 November 2019;

4. A Medical Officer/ Nursing Certificate dated 6 November 2019;

5. A patient self-referral dated 17 November 2019;

6. A report of an MRI (brain and spine) dated 16 December 2019;

7. A patient self-referral dated 18 December 2019;

8. An alleged assault/ incident form dated 23 December 2019;

9. A patient self-referral dated 4 January 2020;

10. A patient self-referral dated 12 January 2020; and

11. A general note dated 21 January 2020 relating to a death in Mr Greenaway’s cell.

17. Exhibit 3 also includes a bundle of documents:

1. A report of Dr Jane Lonie, clinical neuropsychologist, dated 3 February 2020;

2. Clinical Notes from Justice Health dated 30 September 2019 to 2 December 2019; and

3. An online article from Kelso Lawyers dated 31 January 2020.

18. There are also character references from:

1. Mrs Rowena Greenaway, the offender’s wife;

2. Mrs Esther Tween, the offender’s daughter;

3. Mr Alistair McCausland;

4. Mr Matthew Greenaway, the offender’s son;

5. Mr David William Waights;

6. Mr Don Wright;

7. Mrs Megan Moyle;

8. Mr Warren Easton;

9. Mrs Louise Greenaway, the offender’s daughter-in-law;

10. Mrs Margaret E Hope, the offender’s sister;

11. Mrs Sylvia F Reardon, the offender’s sister-in-law;

12. Mr Brian Jay, the offender’s brother-in-law;

13. Ms Kendra Herrera;

14. Mrs Robyn Dalton;

15. Mrs Samantha Bernie, the offender’s granddaughter;

16. Mrs Susan Woodburry;

17. Mr Terence Davoren;

18. Mr Timothy Greenaway, the offender’s son; and

19. Mr Wayne Moyle.

19. Finally, exhibit 3 contains medical reports:

1. A report of Dr John Roberts, psychiatrist, dated 16 January 2020;

2. A report of Dr John Roberts, psychiatrist, dated 2 February 2020;

3. A report of Dr Andrew Kam, neurosurgeon, dated 8 January 2020;

4. A report of Dr Philip Katelaris, urological surgeon, dated 28 November 2019;

5. A report of Dr Sven Whitehouse, ophthalmic surgeon, dated 22 November 2019; and

6. A report of Dr John Obeid, geriatrician, dated 5 February 2020.

20. I pause here to note that I was assisted by the able oral and written submissions of Ms Millward on behalf of the Crown and Mr Harben on behalf of the offender.

Exhibit 1

21. The offender has no prior convictions.

22. AB provided a victim impact statement. She stated that the offending has had a big effect on her life. It has affected her relationships, her coping skills and her ability to trust, and in particular her ability to trust men. She stated that since the offending, she has “never been able to sleep properly again”. AB stated that she has had significant mental health issues, and that she has made multiple suicide attempts. What happened to her at the hand of the offender has had a lasting and terrible effect on her life.

23. EF provided a victim impact statement. She said that the offender “took advantage of the power (he) was given and abused it”. She stated that the offender humiliated her, assaulted her and made her feel like a criminal. She felt worthless, hopeless, unworthy, dirty and disgusting because of the offending. She has never been able to trust anyone. She too has had significant mental health issues and she has attempted suicide on multiple occasions.

24. GH provided a victim impact statement. She stated that she will never be free because of the offending and that she “will carry the disgusting, degrading things he did and said to me” for the rest of her life. She said that the offender caused her to be unable to have proper relationships and to distrust everyone around her.

25. CD provided a victim impact statement. She observed that the offending changed her life forever. She stated that she was never the same since the “horrific bashings and emotional trauma”. She trusts no one, has suffered nightmares and flashbacks, has drunk alcohol in excess and went aimlessly from job to job. She said that the offending caused great psychological and emotional harm. She reports multiple suicide attempts and an inability to trust anyone.

26. I note the profound impact that the offending has had on the victims’ lives. The impact of such offending upon victims is well understood and accepted, even without supporting evidence. On behalf of the community, I recognise the harm done to each of the victims AB, CD, EF, GH and JK.

Exhibit 2

27. The SAR of 7 November 2019 notes that the offender has had stable accommodation in the community with his wife of 56 years. He did not accept any responsibility for the offences. He claimed that the events did not occur and described his current circumstances as an inquisition by his former employer and himself as a “scapegoat”. He further stated that the victims’ statements are “all lies” and that “the police tell stories, they helped the girls write statements and inserted information that they wanted”.

28. According to the Static-99R, the offender was assessed in the below-average range for risk of sexual reoffending, due to his mature age. He displayed no insight into his offending behaviour and discredited the victims and their accounts. He said that “they are known to be delinquent girls, who are attempting to pay back people like me, because I incarcerated them”. He stated that he finds the charges “disgraceful”, but said that he would be willing to participate in a sex offender program.

29. The Sentencing Assessment Report Consultation Case Note was conducted by Ms Rebecca Graham as a file review. She observed that the sexual acts were accompanied by significant violence as the offender would slam the victims’ heads against the wall, pull their hair, throw them to the ground and verbally abuse them. There were also episodes of more severe non-sexual violence. In her opinion, the offender exhibits a lack of concern for others. He treated the victims in a degrading way. She noted that the offences occurred when he was in a position of authority and the victims were vulnerable, institutionalised and unable to escape the abuse. The report writer was of the view that if the offender received a custodial sentence, he should be referred to a psychologist for a face to face assessment to assess dynamic risk factors and to determine his treatment needs.

Exhibit 3

30. Amongst the Justice Health documents, is a report of Dr Hazge-Hazan radiologist, with respect to an MRI of the brain and spine dated 18 December 2019 which makes comment about largely non-specific findings.

31. Dr Jane Lonie, neuropsychologist, interviewed and assessed the offender at Silverwater Correctional Complex on 30 January 2020 for 3.5 hours. Dr Lonie was of the opinion that Mr Greenaway’s speed of processing information has declined. She stated that previous findings of mild extrapyramidal dysfunction and the more recent history of falls and gait change, raise the possibility of an early-stage neurodegenerative illness, such as Parkinson’s disease. She was of the view that the offender’s cognitive decline is of mild-moderate severity.

32. Clinical notes of Justice Health contained a detailed aged health assessment of 6 November 2019. An impression was noted that the offender had no, or very mild, cognitive decline. A fall in early November was recorded.

33. The character references describe the offender as a loving and devoted husband, and as a dedicated and attentive father and grandfather who has raised children who have all made contributions to society. They all describe the offences as being out of character. Several do not accept the jury’s verdicts.

34. The offender’s wife stated that she knows the allegations to be false. She believes the offender is of impeccable character. The offender’s daughter, Ms Tween says that her father came from humble beginnings to attain a Bachelor degree in Business Studies, a Bachelor of Legal Studies (after which he was admitted as a solicitor), a Graduate Diploma in Legal Practice, a Master of Laws and a Doctor of Juridical Science. She speaks of a close family unit which persists to this day. She describes the impact on her family who were “devastated and blindsided” by the jury’s findings.

35. Ms Louise Greenaway, the offender’s daughter-in-law says that the offender is the most law-abiding citizen she has ever met and that he shows great esteem for the law. Dr Ruth Greenaway, the offender’s daughter, states that in spite of the jury’s verdicts, she can attest to her father’s good character. Mr Matthew Greenaway and Mr Timothy Greenway, the offender’s sons, likewise speak highly of their father, the manner in which he raised them and of the many kindnesses he extended to them throughout their lives.

36. Other family members and friends who have known the offender for many decades speak highly of him.

37. Dr John Roberts, psychiatrist, reported on 16 January 2020 and 2 February 2020. The offender denied any psychological problems and said that he was the victim of “payback” and that the only victim in this matter was him.

38. Dr Roberts did not believe that offender’s conduct at interview displayed any evidence of cognitive impairment. He found no reactive state consistent with a psychiatric condition. In Dr Roberts’ opinion, the overwhelming impression from a psychiatric viewpoint, is that the offender is in denial with respect to the seriousness of his situation. After he is sentenced, Dr Roberts recommends that the offender undergo detailed psychiatric and psychological assessment.

39. Dr Andrew Kam, neurosurgeon, reported on 8 January 2020. He noted that the offender said that he had some new symptoms when his right foot would occasionally turn in. He has an ankle splint to assist with walking, but he does not use it. The offender was not in any pain. Dr Kam believes that the offender requires no further treatment, neither cortisone injection nor surgery.

40. Dr Philip Katelaris, urologist, reported on 29 November 2019. He believes that it is improbable that the offender has clinically significant prostate cancer based on his PSA levels, and that he has normal bladder function for a man of his age.

41. Dr Sven Whitehouse, ophthalmic surgeon, reported on 22 November 2019. Apart from mild and well-controlled glaucoma and early cataracts, the offender’s eyes are healthy.

42. Dr John Obeid, geriatrician, reported on 5 February 2020. He was only able to perform a limited examination on 18 December 2019. Dr Obeid stated that Mr Greenaway has the following chronic and ongoing medical problems: hypertension, hyperlipidaemia, venous thromboembolic disease, benign prostatic hyperplasia, glaucoma, mild hearing impairment, osteoarthritis of the knee and lumbar spine, congenital pyloric stenosis, melanoma excised from the abdominal wall in 2008, renal calculi and suspected Parkinsonism. Justice Health records indicate that he had two falls in 2019 and that he was noted to be at risk of further falls.

43. Dr Obeid is of the opinion that the offender’s failure to understand the legal seriousness of the proceedings against him (as reported by Dr Lonie) is consistent with a diagnosis of a mild cognitive impairment or early dementia.

44. Dr Obeid estimated that Mr Greenaway’s life expectancy is substantially less than the medium life expectancy of an 82.25 year old man in Australia of 7.95 remaining years, because of his co-morbidities. He believes that a reasonable estimate would be a further 3.2 years, noting the adverse effect of imprisonment on life expectancy. He is of the view that the offender will likely require assistance with self-care in about 12 months, have problems with mobility and continence in about 18-24 months and thereafter will require the equivalent of nursing home care.

Sentencing Principles to be applied

45. These offences were committed between 54 and 46 years ago. This means that they are historical offences which are, as a general rule, to be guided by consideration of sentencing patterns, so far as can be determined, that existed at the time the offences were committed. [1] In argument, the Crown conceded that sentencing patterns of five decades in the past are extremely difficult to determine. I have done my best, with the limited resources available.

    1. Section 19, Crimes (Sentencing Procedure) Act 1999 (NSW).

46. However, section 25AA of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) provides that the court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

47. The essence of this provision is that I am required to apply current sentencing patterns and practices (for child sexual offences) having regard to what was described by the Attorney General in the second reading speech as “our modern understanding of the trauma caused to children by sexual abuse”.

48. With respect to these victims, there were offences with a sexual element committed against AB, GH and JK. Only JK was under the age of 16 at the time the offences were committed against her. The offence of rape is now abolished, but as per s25AA(5)(d) it has been substantially replaced with the offence of sexual assault (s61I), which is one of the offences set out in Division 10 section 25AA(5)(a).

49. Accordingly, I am to have regard to the sentencing principles as they existed at the time of the offending for the offences committed against AB, CD, EF and GH, as they were above the age of 16 years at the time the offences were committed.

50. By contrast, counts 23, 24, 25, 26, and 28 committed against JK are classified as child sexual offences, and I must deal with them in accordance with sentencing principles consistent with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

51. In accordance with s25AA(2), I note that the standard non-parole period for a child sexual offence should be the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing. These offences were committed long ago, before standard non-parole periods were introduced. I retain discretion to fix the non-parole period depending on the circumstances of the case. I accept that non-parole periods then imposed were generally in the order of one third to one half of the head sentence.

52. I take into consideration the submissions of the Crown and the offender with respect to this issue.

Objective Gravity

Abuse of a position of authority

53. The offender’s abuse of his position of authority in the present case is profound. It is made up of number of different facets. They are:

1. The position of authority held by the offender at the time he offended against AB, CD, EF and GH was Relieving Deputy Superintendent at PGTS. He was one of three Senior Administrative Officers charged with the daily operation of the institution. At the time he offended against JK, he was the Superintendent at Ormond, where he exercised ultimate authority.

2. The position of authority occupied by the offender in this case was unique, and went beyond simply the care and supervision of the victims. Each of the institutions was, in effect, a correctional institution, albeit one said to have a remedial focus. While they were known as “reform schools,” each of the victims were committed to the institution by an order of a court and detained within high walls from which they were not permitted to leave, except under the direct supervision of institution staff. The offender knew this. In other words, he knew the victims were within an institution from which they could not leave.

3. Further, the offender was entitled to, and did give instructions to the victims (and other inmates) which they were obliged to follow. Those instructions would include having the victims confined to isolation or ordering that they accompany him to his office or the holding room. The offender abused that aspect of his position of authority at the institutions to isolate a number of the victims in order to provide an opportunity to offend against them.

4. Consideration of the unique position of authority occupied by the offender not only illustrates his direct abuse of that position, but the degree of the imbalance in the positions of the offender and the victims.

5. The offender was, by virtue of his position in the institutions, privy to the particular vulnerabilities of the victims and he exploited their vulnerabilities in his commission of the offences. The evidence in the trial establishes that, by virtue of his position, the offender had access to the files held for each inmate and therefore to information regarding their personal circumstances and the circumstances which led to their committal to the institution. In evidence, the offender accepted that, at both institutions, information contained within an inmate’s file included their background, their family circumstances, whether they had supportive or unsupportive families and whether they were state wards.

6. As exhibits tendered during the trial demonstrate, the victims’ files included reference to whether the victims were wards of the state (as CD, EF, GH and JK were) and the nature and extent of the relationships they had with surviving family members, particularly as those relationships were relevant to the question of placement upon discharge. I observed during the hearing of the sentence proceedings, there is a notable commonality between the victims in that each was vulnerable – being either wards of the state (CD, EF, GH and JK), from interstate (AB) and/or estranged from their parents and with a history of treatment in mental health facilities (CD).

7. The fact that the offender knew (by virtue of his position of authority) of the particular vulnerabilities of the victims speaks to the degree of his abuse of his position. At least in the case of GH and JK, it is plain that the offender deliberately exploited his knowledge of their vulnerability. He told GH when she threatened to reveal his abuse, “Go ahead, you’re only a state ward, nobody will believe you, you’re a slut, you’re worthless, nobody wants you”. The offender told JK that he could keep her there as long as he wanted and (on two occasions) that no-one would believe her if she told anyone (what he had done). There is no doubt that the offender knew of the personal circumstances of JK, as he was the author and signatory of significant pieces of correspondence throughout her three admissions.

8. It can be seen from the above that the offender was not only aware of the degree of estrangement of the victims from their families and therefore the very limited, if any, opportunity the victims had to make a meaningful complaint. By meaningful complaint, the Crown submitted, and I accept that its meaning is a complaint that would be believed and acted upon. As the evidence in the trial demonstrated, while contemporaneous complaints by the victims were limited (for the reasons expressed by each of them), the persons to whom they complained did not believe them and/or took no action.

54. I find that the offender was in a position of authority over each of the victims by virtue of his employment. Each victim was unable to remove themselves from the institution or the offender, and the objective gravity of each offence is increased by reason of that factor.

Vulnerable victim

55. Vulnerability refers to a class of persons recognised as being vulnerable to the commission of offences because of their age, employment or situation and not simply to the fact that the victim was vulnerable to the actions of the offender by the particular circumstances present when the offence was committed. The experience of the Royal Commission into Institutional Responses to Child Sexual Abuse has amply demonstrated that children housed in institutional care or confinement were and are vulnerable to the commission of offences, particularly offences in the nature of sexual abuse, by persons charged with their care and supervision. I do not double count the age of the victim in count 23.

56. The Crown submits that each of the victims was vulnerable for the purpose of s21A(2)(l) of the Sentencing Act and accordingly that the court would take that aggravating factor into account in sentencing the offender. The Crown recognises the interplay between this and other factors relevant to sentence (including abuse of position of authority) and I exercise caution to avoid double-counting.

57. The defence submits that there are degrees or ranges of vulnerability. In this matter the victims were all over the age of 10, JK was 13 to 15 years old and the eldest victim was 17 years old.

58. I take into account the maximum penalties for each offence, which indicates the seriousness with which the legislature views such offences. That each instance of offending is of a high order of objective seriousness is both evident and an understatement.

59. The offender offended over almost a decade, albeit with a break when he had no access to vulnerable girls when he was at Mount Penang. He chose to exploit his power over the victims at his place of work and from where they could not escape. He treated his victims with disdain and cruelty. Condign punishment is called for.

Sentencing Approach

Remorse or contrition

60. The Crown submits that there is no evidence that the offender is remorseful in respect of his offending against any of the 5 victims. The offender gave evidence in August 2019 denying that he offended against any of them. Comments made by the offender to the author of the SAR are confirmation of his lack of remorse and absence of insight into his offending. His comment, “they are known to be delinquent girls, who are attempting to pay back people like me, because I incarcerated them” is particularly troubling. In my opinion, Mr Greenaway shows no insight into his offending.

61. The offender chose to defend these matters at trial as was his right. That is not a matter that is adverse to him on sentence, but it reflects an absence of remorse. Since the verdicts, there have been no expressions of remorse. Indeed, the offender continues to protest his innocence.

Rehabilitation, Likelihood of Re-offending and Personal Deterrence

62. Given the offender’s advanced age and the absence of evidence of offending since 1973, the Crown acknowledges that specific deterrence does not loom large in the sentencing exercise. I agree with this submission. Given his age, I find that he is very unlikely to re-offend. As he has no insight into the offending, I find his prospects of rehabilitation are low.

Prior Criminal History and good character

63. The offender has no prior convictions. The Crown submits that the court is precluded from taking into account the offender’s prior good character in respect of some of the offences for which he is to be sentenced by reason of s21A(5A) of the Sentencing Act. This section covers special rules for child sex offences and states that:

In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

64. In respect of the remaining counts to which s 21A(5A) does not apply, while the court may not be precluded from having regard to the offender’s prior good character in that respect, the weight to be afforded to the offender’s prior good character should be moderated given the nature, seriousness and length of his offending behaviour: Hughes v R [2017] HCA 20 (at [337]). This is not a matter in which it could be reasonably suggested that the offending is an uncharacteristic aberration in an otherwise unblemished life. The offender committed a large number of serious offences against 5 young women (each 17 years of age or under) who had been entrusted into his care over some years.

65. The offender submitted that prior to the period of offending and for the 46 years since the offending, Mr Greenaway was, and has been, a person of good character. In my opinion, the offender is entitled to some limited leniency on account of his good character.

General Deterrence and Denunciation

66. Button J observed in Magnuson v R [2013] NSWCCA 50 at [62] that, even where there has been a significant delay in reporting the matter to police, during which the offender has not committed any further offences, general deterrence still has a significant role to play in sentencing an offender who has engaged in serious sexual offending against multiple victims over an extended period. The experience of the Royal Commission has served as a salient reminder of the need to deter persons including persons responsible for the care of children in institutional settings from abusing their positions and committing sexual offences against them.

67. In EG v R [2015] NSWCCA 21 at [42] Hoeben CJ at CL said:

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

68. That passage was cited with approval by RA Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] and more recently in O’Sullivan v R [2019] NSWCCA 261 at [35]. In O’Sullivan v R, Hoeben CJ at CL remarked that emphasis should be given to general deterrence in sentencing an offender for historical child sexual offences.

69. The Crown submitted that there is nothing in the material before the court that suggests that the offender is not an appropriate vehicle for general deterrence. In my opinion, the offender’s conduct must be denounced, and the penalty imposed must reflect the community’s abhorrence of this type of criminal conduct, so that it deters other likeminded offenders from engaging in the sexual exploitation of children.

Planning

70. Whilst the offences likely reflect mostly opportunistic offending, such that the offender probably did not plan any particular assault or particular sexual act until the opportunity presented itself, the evidence clearly demonstrates that the offender took advantage of each victim when and how he pleased, given the imbalance of power between him and the victims, the objects of his cruelty.

The Offender’s Health

71. The Crown acknowledges that the state of the offender’s health is a relevant consideration on sentence but says that it must be approached with caution. The weight to be afforded to it, she submits, must be assessed in light of all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offending and any damage to health or shortening of life: R v Sopher at 573; R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [23-31]; R v Achurch [2011] NSWCCA 186 at [104, 117].

72. In my opinion, the offender’s health is largely unremarkable for a man of his age. I expect that he will be treated appropriately by Justice Health. I approach the evidence of Dr Obeid with some caution, as he has had limited opportunity to attend and examine the offender. Notwithstanding that comment, I am mindful that the offender may well die in custody as a result of the sentence I will impose.

Delay

73. There has clearly been significant delay in this case. The Crown acknowledges that delay is a relevant consideration on sentence. The offender is entitled to have the court take into account that he has not been convicted of any offences since 1973 and that he will serve his sentence as an older man. There is no evidence that the offender has suffered uncertain suspense as a result of the delay. Indeed, he has, as a result of the delay in reporting the matter to police, enjoyed freedom at a time when he might otherwise have been incarcerated.

74. In any event, it appears to be well settled that the Todd principle (R v Todd [1982] 2 NSWLR 517) does not apply to a state of uncertainty experienced by an offender who remains silent and hopes that his offending will remain undetected: R v Cattell [2019] NSWCCA 297 at [140]; Elchiekh v R [2016] NSWCCA 225 at [58]; R v Spiers [2008] NSWCCA 107 at [37]-[38].

75. Price J in R v Cattell [2019] NSWCCA 297 (at [138]), referring to the observation by Hoeben CJ at CL in Hornhardt v R [2017] NSWCCA 186, noted that it is well known that the sexual abuse of children causes a reluctance on the part of victims to come forward and make complaint. He endorsed the following observation by Whealy J in R v Moon (2000) 117 A Crim R 497 at [35]:

“It is not uncommon where a very young or vulnerable person is abused by an older person that the complaint does not emerge until many years later. It is the very nature of the relationship that, in many cases, leads to this repression and inhibition.”

76. That observation is equally apt to the circumstances of this case. In this case, the offender committed offences against victims whom he knew to be both young and vulnerable. He exploited their youth and vulnerability (including their estrangement from their families) in an effort to convince them of the futility of any complaint. In deterring the victims from reporting his abuse to authorities, the offender got what he wanted. He escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that long period.

Extra Curial Punishment

77. The offender submits that since Mr Greenaway was named during the Royal Commission into Institutional Responses to Child Sexual Abuse, he and his wife have been subject to media scrutiny and comments on social media. I do not accord this submission any weight. I understand that it was as a result of the establishment of the Royal Commission, that the victims came forward.

Covid-19

78. The present crisis will no doubt create anxiety in the gaols, just as it has in the wider community. The offender will not be able to self-isolate in gaol. Social visits have been suspended indefinitely, although telephone access has increased: see Corrective Services NSW Memo in Response to Covid-19 dated 25 March 2020.

79. The offender is in a particularly vulnerable age group. Prisoners cannot social distance. The offender does not fall into a category that can be considered for early parole.

80. In my opinion, the lack of visitors, the reduced capacity to remain in contact with friends and family will likely heighten the offender’s concerns and anxiety, and these are relevant factors to synthesise along with all other matters. The extent to which those factors may be taken into account, if at all, is a matter to be resolved in the particular facts and circumstances of the individual case: Brown v R [2020] VSC 60 at [48].

Totality

81. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.

82. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative.

Special Circumstances

83. Mr Harben submitted that the court should make a finding of special circumstances as Mr Greenaway has good prospects of rehabilitation, his risk of re-offending is low, he is old and by the time he is released from custody there will still be a need for rehabilitation. This is the offender’s first time in custody. I find that because the offender is now of an advanced age, the conditions of his custody will be more onerous upon him. He will require supervision upon his release. I therefore find special circumstances and will deviate from the statutory ratio of 75% to 50%.

Threshold

84. Having considered all the possible alternatives, I am satisfied that the section 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offences, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Time spent in Custody

85. The offender has been in custody since 30 September 2019. The sentence will be backdated to that date.

Sentence

86. The purposes of sentencing are expressed in s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community.

87. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen(No 2) [at 476] in applying them.

88. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty, the standard non-parole period (if any) and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25). I have already set out the offenders’ subjective case.

89. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.

90. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 20 years.

91. As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows:

1. For count 2, assault of AB, I would have imposed a sentence of 9 months;

2. For count 3, assault of AB, I would have imposed a sentence of 1 year, 2 months;

3. For count 6, assault with act of indecency on AB, I would have imposed a sentence of 2 years;

4. For count 7, assault with act of indecency on AB, I would have imposed a sentence of 2 years, 2 months;

5. For count 9, assault with act of indecency on AB, I would have imposed a sentence of 2 years, 2 months;

6. For count 11, assault with act of indecency on AB, I would have imposed a sentence of 2 years, 6 months;

7. For count 12, assault occasioning actual bodily harm of CD, I would have imposed a sentence of 1 year, 7 months;

8. For count 14, assault of CD, I would have imposed a sentence of 9 months;

9. For count 16, assault of CD, I would have imposed a sentence of 10 months;

10. For count 18, assault occasioning actual bodily harm of EF, I would have imposed a sentence of 2 years, 3 months;

11. For count 20, assault occasioning actual bodily harm of GH, I would have imposed a sentence of 1 year, 9 months;

12. For count 21, rape of GH, I would have imposed a sentence of 10 years;

13. For count 22, buggery upon GH, I would have imposed a sentence of 10 years;

14. For count 23, assault with act of indecency on a female aged under 16 years, namely 12 or 13 years of age, of JK, I would have imposed a sentence of 3 years, 3 months;

15. For count 24, rape of JK, I would have imposed a sentence of 11 years;

16. For count 25, rape of JK, I would have imposed a sentence of 10 years;

17. For count 26, rape of JK, I would have imposed a sentence of 10 years; and

18. For count 28, rape of JK, I would have imposed a sentence of 10 years.

Orders

92. Mr Greenaway, please stand.

93. You are sentenced to an aggregate term of imprisonment for 20 years.

94. The sentence commences on 30 September 2019.

95. You will be eligible for parole in 10 years from the commencement of your sentence. I have deviated from the statutory ratio of 75% to 50% because of special circumstances. The non-parole period expires on 29 September 2029.

96. Your head sentence expires on 29 September 2039.

97. Do you understand the orders I have made?

Endnote

Decision last updated: 14 April 2020