R v Hall

[2022] NSWDC 340

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Hall [2022] NSWDC 340

Hearing dates:

4/4/22-8/4/22, 12/4/22, 3/6/22, 17/6/22, 1/7/22

Date of orders:

1/7/22

Decision date:

01 July 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentence an aggregate fixed term of imprisonment of 1 year 2 months (4/10/31-3/12/32). I decline to impose a NPP.

The indicative sentences are:

Count 1 – 1 year 9 months

Count 2 - 6 months.

Catchwords:

Crime – Sentence – Indecent assault on a male person

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Culbert v R [2021] NSWCCA 38

MRW v R [2011] NSWCCA 260

R v MAK; R v MSK [2006] NSWCCA 381

R v Nelson [2106] NSWCCA 130

R v Obbens [2022] NSWCCA 109

R v Tuala [2015] NSWCCA 8

Sarhene v R [2022] NSWCCA 79

Category:

Sentence

Parties:

NSW DPP – Crown
Edward Hall - Offender

Representation:

Ms K Mulley for Crown
Mr T Healey for Offender

File Number(s):

2019/110683

Publication restriction:

Non-publication order in relation to the victim and any witness who was a child at the time of the offences.

sentence

1. Mr Edward Hall was found guilty after a Judge Alone trial conducted before myself at the Newcastle District Court of two offences of indecent assault on a male person. Each of those offences, which involve the now repealed s 81 of the Crimes Act 1900, carry a maximum penalty of five years imprisonment. The maximum penalties are of course important guideposts in the sentencing exercise to which I have had regard. It is now a matter for me to determine the appropriate sentence for each of these offences.

FACTS

2. The facts of the offences are derived from the evidence at trial which is set out in summary in my verdict and reasons of 12 April 2022. The victim was born in 1959. After completing year 6 in 1971 he commenced in year 7 at St Pius Catholic School in Adamstown in 1972. At that school one of his teachers was the offender. In 1974 the victim turned 15 and was in year 9. In June of that year his family suffered a tragedy when his ten-year-old sister passed away.

3. About three months after his sister passed away the victim was approached by the offender at school who asked if he would like to go away shooting. A couple of weeks later, around August or September 1974 the offender picked up the victim from his home in the Newcastle area and they headed off in the offender’s car. After that they drove for an hour or so to a bushland area. At that location they visited some premises where there was a male in his thirties and a younger girl. The victim and the offender slept at the house that night, the victim sleeping on a veranda area.

4. The next morning the victim and the offender headed off in the car along a bush track for half an hour or so until they came to an opening where there was a creek. As it was quite hot the victim removed his t-shirt but left on the jeans he was wearing. After this the offender said to him something like, “Do you know the pressure points of the body?” When the victim said “no”, the offender said he had done some sort of army training and suggested that the victim lay on the ground so that he could show him the pressure points.

5. The victim then laid on the ground and the offender placed a thumb to the victim’s elbow and squeezed until he got a reaction, then put his finger behind the victim’s ear and pushed there until he got a reaction, and then touched him around his ankle and his knee. After this he placed his hand into the left side of the victim’s groin and pushed deeply into that area and then cupped his hand over the victim’s penis and testicles and began to squeeze. In response, the victim rolled to the side and at that point the offender grabbed him by the nipples and started to twist or squeeze his nipples. The victim then raised his left hand and swept the offender’s arms away and jumped up and said something like, “Come on you said we were going to go shooting”.

6. The offender then said words to the effect of, “Look we’ll go and have a swim first”. But when the victim said he wanted to get his swimmers from the car the offender said, “No, look men up here we go swimming in the nude”. The victim at age 15 was quite self-conscious and insisted that he wanted to get his swimmers from the car which he did when the offender eventually opened the car boot. The victim wrapped a towel around himself and changed into his Speedos while the offender was undressing, after which the offender walked to the creek which was about 20 metres away, where he entered the water naked.

7. The victim however sat at the top of the creek even though the offender said to him on a number of occasions to come down to where he was. The victim however, because of what had just happened, remained where he was, looking off into the distance at the hills and thinking about where he was and what had just happened and the situation that he was in. In the end, after the offender had suggested several times that the victim join him in the water, the victim said, “Come on you said we were going to go shooting”. After this they both went back to the car where they got dressed and the offender produced a firearm from the car which the victim thought was a .22 calibre because he could remember the small cartridges of the bullets. He said the offender took a piece of paper and set it up amongst some trees. After this they had several shots with the gun and then the offender said, “Come on it's about time we started getting back”.

8. After this the offender drove the victim back to his home in the Newcastle area where they arrived late afternoon. The victim did not tell his parents what the offender had done to him. After this weekend the offender continued as the victim’s history teacher but he otherwise did not have anything to do with him.

9. During the same year as the shooting trip but after that incident there was an incident in the playground in which the victim intervened in an attempt to stop some boys fighting. During this incident the victim was grabbed from behind by someone and turned around and punched the person, who turned out to be the football coach Father Saunders. As a result the victim was told to stand near the Principal’s office. Whilst standing there he saw Father Brennan, who had just been appointed the new Principal, speaking with the offender who was whispering something in Brennan’s ear and indicating towards the victim. After this the victim was told to go home and that his parents would be contacted. He said that his parents later attended a meeting at the school after which they told him that he had been expelled.

10. After being expelled, the victim remained off school for the rest of the year but then commenced at another High School the following year which was 1975. The victim left school at the end of year 10 and did a carpentry apprenticeship after which he worked with horses for several years before joining the Police Force in June 1990.

11. The victim at some stage around 2018 became aware that the offender had been charged with a number of offences relating to students from St Pius and it was after this that he decided to come forward and give a statement. Those are the factual matters upon which I proceed to sentence.

OBJECTIVE SERIOUSNESS

12. The objective seriousness of the two offences for which the offender is to be sentenced is marked firstly by the fact that they each carry a maximum term of imprisonment of five years, which marks them as being of some seriousness. However it is necessary that I make an assessment as to where the offences before the Court lie on a theoretical scale of objective seriousness. This requires among other things a consideration of the type of conduct which in 1974 was capable of falling within s 81 of the Crimes Act 1900. At that time an offence under s 81 was capable of including a much broader range of sexual offences, including penetrative acts which after 1981 would have amounted to sexual assault carrying much higher penalties. It is therefore necessary to assess the s 81 offences that are before the Court in the context that when they were committed the range of acts that could have amounted to an offence under s 81 was much broader and included much more serious conduct.

13. The offence in count 1 involved the offender touching the victim to the groin area where he cupped his hand over the victim’s penis and testicles and began to squeeze. The count 2 offence involved the offender twisting or squeezing the victim’s nipples with skin-to-skin contact.

14. While the victim had initially consented to being touched on parts of his body in order to be shown “the pressure points”, he certainly did not consent to being touched in a sexual manner on his genital area. The touching on the genital area was, however, relatively brief and was not skin on skin. The twisting or squeezing of the nipples was also relatively brief, although this involved skin on skin contact. Neither offence was brought to an end by the offender’s actions, but rather by the actions of the victim, in first rolling away from the offender, and then brushing the offender’s hands away from his nipples.

15. The seriousness of each offence is increased by reason of the age differences between the victim who was 15 and the offender who was 23 to 24 years of age. In these circumstances there was a real power imbalance which rendered the victim more vulnerable. The victim was also vulnerable by reason that the offender had taken him to an isolated location.

16. Having considered the evidence, I am satisfied beyond reasonable doubt that the offender’s actions in taking the victim unaccompanied on the “shooting trip” were intended by him to provide an opportunity to deal with the victim sexually. In my view this conclusion is supported by a number of matters.

17. Firstly, the victim’s evidence that almost as soon as they arrived at the creek the offender offered to demonstrate the “pressure points” of the body which in my view was itself a ruse intended to provide an excuse for the offender to touch the victim’s body, and which led within a short time to the sexual touching in counts 1 and 2.

18. Secondly, there were the offender’s actions immediately after this where he removed all of his clothes, encouraged the victim to do likewise, and encouraged him more than once to come to where the offender was in the creek.

19. Thirdly, although this was described as a shooting trip, the actual shooting activity involved only a short period of time where a few shots were fired at a paper target, after which the offender said it was time to go.

20. Fourthly, my conclusion that the shooting trip was a ruse is given significant extra support by the tendency evidence. This evidence demonstrates, as I found at para 110 of my verdict reasons, that the offender had a sexual attraction to young males aged between about 13 to 16 and a tendency to act on it by committing sexual offences against male students at St Pius both in the course of contact with them at school and outside of school. Furthermore, and as is set out in exhibit 1 from the trial, the offender had already committed an indecent assault offence on another boy from St Pius who is known by the initials RD, when he had taken RD on a so-called shooting trip in 1973. Not only that, but trial exhibit 1 demonstrates that in 1980 and 1981 the offender committed a number of sexual offences against another St Pius student with the initials PM which also occurred during so-called shooting trips, in fact three different trips.

21. In my view the evidence I have recited provides very strong support and proof beyond reasonable doubt that the offender planned the “shooting trip” with the victim so as to isolate him and provide an opportunity to commit some form of sexual offence upon him.

22. It was submitted by the Crown that the objective seriousness of the offences is made worse by reason that the offender was naked in the victim’s presence after the offences were committed as this would have caused further discomfort and anguish in the victim. While I accept that this is likely to have been the case, it was not a matter which featured in the evidence given by the victim during the trial and nor was it referred to in his Victim Impact Statement. In these circumstances it is not a matter that I treat as increasing the objective seriousness of either offence.

23. The offences are made more serious however because they involved an abuse of trust and an abuse of authority, given the teacher/student relationship which existed and which was instrumental in the victim going on the shooting trip.

24. In MRW v R [2011] NSWCCA 260 then Chief Justice Bathurst said at [77] that:

“Abuse of trust and abuse of authority are distinct concepts, although commonly arising out the same facts.”

25. The case before the Court today is an example of both types of breach being made out on the same facts. As neither of them are an element of the offences they do amount to aggravating matters. However, I am conscious that there is a significant degree of overlap between the two concepts and I have therefore taken care not to double-count these factors insofar as they overlap.

26. At the relevant time an “indecent assault on male” offence under s 81 could be committed whether or not the victim had given consent to the indecent act. In this case the fact that the act was done without the consent of the victim is a matter that increases its seriousness.

27. Having regard to all of the evidence I consider the moral culpability of the offender to be high. I assess the objective seriousness of count 1 as slightly below the mid-range. As to the count 2 offence, in my view this sits comfortably below the mid-range and closer to, although not within, the lower range of objective seriousness.

VICTIM IMPACT STATEMENT

28. The Court has received a Victim Impact Statement which was read out by the victim. The Victim Impact Statement sets out a detailed history of numerous events which have impacted seriously on the victim over a period of many years around and since the time of the offences. They include the tragic death of his sister, his expulsion from St Pius, the apparent effect of his expulsion on his family and on his subsequent schooling, and his belief that these events led to substance abuse and later suicidal actions along with other adverse consequences. The correct approach to the use of Victim Impact Statements has been considered by the New South Wales Court of Criminal Appeal in a number of cases, including R v Tuala [2015] NSWCCA 8; R v Nelson [2106] NSWCCA 130 and Culbert v R [2021] NSWCCA 38.

29. Considerable caution is required before a Victim Impact Statement can be used to establish that “substantial harm” has been caused. In the case before the Court it seems to me very likely, as the victim firmly believes, that the actions of the offender were instrumental in his being expelled from St Pius. However, this is not a matter about which I can be satisfied beyond reasonable doubt, given that the evidence is limited, essentially, to the victim having seen the offender whispering in the ear of the Principal, with no knowledge of what was said, or any knowledge of what matters the school took into account in deciding to expel the victim.

30. The Crown also appropriately acknowledged that the Victim Impact Statement in this matter is “wide ranging”. In my view and while I accept that the victim’s life has been adversely impacted in the various ways he describes, I am not on the evidence able to conclude beyond reasonable doubt that these impacts can be attributed solely to the offences before the Court. In my view that would be a far too simplistic approach to what is a complex life history. I do not therefore approach the Victim Impact Statement on the basis that it aggravates the offences or amounts to substantial harm to the victim beyond that which is to be expected from offences of this kind.

31. In this regard the Courts have said many times in recent years that emotional and psychological harm is to be expected when sexual offences are committed against children and young persons, particularly at the hand of a trusted person, as was this offender. In many or most cases it will be almost inevitable that the victim of childhood sexual offences will be left with a fractured or diminished sense of safety, a devalued or altered sense of self, a tendency to self-harm and self-medicate, and difficulties maintaining trusting relationships. In many cases these effects will be lifelong. In this case the Victim Impact Statement speaks convincingly of ongoing consequences of the type I have just described. While any sentence that I impose can in no way address those consequences, hopefully the Court’s acceptance of the victim’s evidence at trial will serve to provide to the victim and his family at least some degree of comfort and vindication.

SUBJECTIVE MATTERS

32. Turning to subjective matters relating to the offender. I have little if anything by way of material to inform me of matters relevant to the offender’s background and current circumstances, including his current physical and mental health. That is however because of his instructions to his lawyers to place no such material before the Court, and to indicate simply that he maintains his innocence.

33. He is nearly 72 years of age and is currently serving a head sentence 20 years with a non-parole period of 13 years six months. He will not be eligible for parole until 4 April 2032 when he will be 81 years of age. No evidence has been placed before the Court to suggest that the offender has any particular health issues. Based on my own observation of the offender during his trial I conclude that he is a relatively healthy, fit and active man for his age.

34. The Court has no evidence relating to the offender’s childhood. There is no evidence to suggest that his upbringing was deprived or difficult or that he was exposed to drugs, domestic violence or other adversity.

35. Having observed him give evidence in Court at his trial I conclude that he is a highly intelligent, educated and articulate man, which is consistent with his employment history. While there was during his trial some vague reference to a history of military service, I have no evidence to confirm or provide any detail about this.

36. He has no criminal history other than the offences before the Court and those for which he was sentenced by Judge Gartelmann SC on 15 February 2019. At the time that he committed the offences before the Court today he had no prior convictions. However, as is established by Judge Gartelmann’s findings, he had already committed an offence in 1973 against RD and went on to commit various other offences against other students. I do not treat these other offences as aggravating the offences before the Court. However they have the effect that the offender is not entitled to the leniency that would have been extended if this offending had not occurred, and they indicate that the offences before the Court are not mere aberrations in an otherwise blameless life. See R v MAK; R v MSK [2006] NSWCCA 381 at [59-61].

DELAY

37. There has been very considerable delay since the offences were committed in 1974 which were only reported to police September 2018. However, the relevance of delay in sentencing will depend on the circumstances and whether the delay has resulted in hardship or other adverse consequences to the offender. There is no evidence of any such hardship or other consequences in this case and so I do not regard delay as a basis for mitigation of the appropriate penalty.

REHABILITATION AND REMORSE

38. There is no evidence of remorse and the offender continues to deny the offences. I have received no evidence and no submission addressing the offender’s prospects of rehabilitation and risk of re-offending. I am aware however from the remarks on sentence of Judge Gartelmann SC which were provided to me by agreement, that the offender’s current sentence relates to offences committed between 1972 and 1986 and that there is no evidence of any offences since that time. I think the offender’s risk of re-offending is relatively low. However that view is not based on a conclusion that he is a reformed or changed man, but rather on the fact that he is unlikely to be exposed to opportunities to offend in the future, combined with the advanced age at which he is likely to be released from custody.

38. As these are child sexual offences involving a child under 16 years, I have regard to s 25AA of the Crimes (Sentencing Procedure) Act 1999 and the need to sentence the offender in accordance with sentencing patterns and practices that now apply rather than those that applied in the 1970’s which might have been regarded as more lenient. I am also mindful of the trauma caused by sexual abuse of children as it is understood today, rather than as it might have been regarded in the past. As I have already noted, Courts of this country have for some years now accepted the very serious effects that sexual offences upon children will usually, if not almost invariably involve. This case is no different.

CONSIDERATION

40. In determining the appropriate sentences for these offences I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Of these, personal deterrence and the need to protect the community are of less significance in my opinion, given the offender’s age and the prison term he is already serving. I am also of the view that promoting his rehabilitation is of less significance because in my view no element of the penalty that I will impose, whether it be regarded as harsh, lenient or otherwise, is likely to impact relevantly on those prospects, which I think are poor.

41. In my view, the most important factors in this sentencing exercise are the need for the sentence to reflect general deterrence, to adequately punish and make the offender accountable, to denounce his conduct, and to recognise the harm done to the victim and the community.

42. I have also had regard to the fact that the offender currently is serving a sentence of 20 years imprisonment with a non-parole period of 13 years 6 months for numerous other sexual offences committed between about 1972 and 1986 involving various other students of St Pius. There will be cases where a Court in sentencing an offender who has previously been sentenced for similar offences may need to temper any subsequent punishment because, for example, the offender has already served the earlier term and has made significant steps towards rehabilitation. It seems to me that R v Obbens [2022] NSWCCA 109 provides an example of such a case. However the circumstances of the case before the Court are not of that type.

43. In this case the offender is still in the relatively early years of the substantial sentence imposed by Judge Gartelmann SC. He has made no steps towards rehabilitation and has shown not the slightest indication of any remorse for any of the seriously predatory crimes he has committed. In these circumstances, and having regard to all of the matters, objective and subjective, to which I have referred, I am well satisfied that a period of imprisonment must be imposed and is the only appropriate penalty for the count 1 offence which involved the deliberate and pre-planned sexual touching of the victim after he had been intentionally isolated by the offender.

44. The count 2 offence involving the squeezing of the complainant’s nipples is an appreciably less serious offence than count 1. No specific submissions were directed to the question of whether, standing on its own, count 2 could only be dealt with by a term of imprisonment. In my view there is an argument that on its own the count 2 offence might not have crossed the s 5 threshold such that a term of imprisonment is the only appropriate penalty. The decision in relation to s 5 is a critically important one, and requires the Court to have regard to all matters of relevance, not only objective seriousness and the need for general deterrence: see Sarhene v R [2022] NSWCCA 79 at [38].

45. In my view although the count 2 offence was less serious, it was, as I said earlier, aggravated significantly by the serious breaches of trust and authority that it involved, although accepting that there is some overlap between these two concepts. There are also the findings I have already made that the offence occurred in the context where the offender had deliberately isolated the victim for the purposes of dealing with him sexually. In addition, there is a complete absence of remorse or of any extenuating subjective circumstances. Plus there is also the fact that I have already concluded that a term of imprisonment must be imposed for the count 1 offence.

46. Having considered these matters I am also satisfied for the purposes of s 5 of the Crimes (Sentencing Procedure) Act 1999 that the only appropriate penalty in relation to the count 2 offence is a term of imprisonment. I note that no submission to the contrary was made on behalf of the offender in relation to either offence.

DETERMINATION

47. I intend to impose an aggregate sentence and I am required therefore to indicate the sentences that I would have imposed had I not imposed an aggregate sentence. In determining those indicative sentences I have made my own assessments which have included consideration of the indicative sentences noted by Judge Gartelmann SC in imposing sentence on the offender in February 2019. In this regard the offences involving the victims with the initials RD, OP and CW are of particular relevance, given that they involved the same offence provision and broadly similar conduct with students from St Pius of a somewhat similar age to the victim in this case. I note however that Judge Gartelmann SC was not satisfied that any of the offences against RD, OP or CW were pre-planned, whereas I have concluded that the offending in this case was carried out in the context of a shooting trip that was a ruse to isolate the victim and to make him vulnerable to exploitation.

48. The indicative sentence for count 1 is a term of imprisonment of one year nine months.

49. The indicative sentence for count 2 is a term of imprisonment of six months.

CONCURRENCY/ACCUMULATION

50. In my view there should be a degree of notional accumulation in relation to each of these terms of imprisonment, given that they involve separate acts and a continuation of the offending conduct after attempts by the victim to rebuff the offender. However, the degree of accumulation should be fairly limited given that the two offences were committed during one incident.

51. In my view, having regard to totality principles and the need for a nominal degree of accumulation, the appropriate term of imprisonment is an aggregate head sentence of one year ten months and a non-parole period of one year two months.

52. I have made a finding of special circumstances based on the offender’s age and the likely deterioration in his health that will probably occur during the period of his imprisonment. I note that Judge Gartelmann SC made such an adjustment on this basis, such that the current ratio between head sentence and non-parole period is 67.5%.

TOTALITY

53. An important and complicating factor in this sentencing exercise is that the offender is currently serving a head sentence that will not expire until 4 October 2038 and will not be eligible for release on parole until 4 April 2032. It is necessary that I examine the overall effect by reference to totality principles of any sentence that I intend to impose in light of the sentence that is currently being served. In applying totality principles, I need to ask myself what would likely have been the effective head sentence and non-parole period imposed if Judge Gartelmann SC had been sentencing the offender at the one time for all the offences including those before the Court today.

54. The offences before the Court today were committed within the period of the offences for which Judge Gartelmann SC imposed sentence, which offences involve similar types of offending and in many cases much more serious offending against other boys from the same school. The sentence imposed by Judge Gartelmann SC is a substantial sentence, although one that was not overturned by the Court of Criminal Appeal. In my view, if the offences now before the Court had been before Judge Gartelmann SC this would have led to some increase in the overall head sentence and the non-parole period imposed at that time. In my view such an outcome would have been required in order to acknowledge that these offences involve an additional victim, and to address the purposes of sentencing to which I have referred.

55. In order to reflect my conclusion that the overall sentence imposed by Judge Gartelmann SC would have been longer, I have given particular consideration to the date on which the sentence that I will impose should commence. The commencement date that I have selected is intended to reflect the minimum additional period that I consider the offender must serve in custody, having regard to all the purposes of punishment and the objective and subjective features of this case.

56. I intend to impose a fixed term, rather than a head sentence and non-parole period. The reason for that is that any head sentence would be totally subsumed within the head sentence that the offender is currently serving. The fixed term that I will impose is intended to reflect the non-parole period that I would have imposed.

57. I impose a fixed term of one year two months. I order that that term commence on 4 October 2031 and expire on 3 December 2032. The effect of that order is that I have extended the period for which the offender will not be eligible for parole, by eight months. I am conscious that this results in a change to the ratio of non-parole period to overall head sentence which was set by Judge Gartelmann SC at 67.5%. However the orders I have made represent in my view the minimum period of additional custody that must be imposed.

58. Ms Crown, Mr Healey any errors to raise?

59. MULLEY: No your Honour.

60. HEALEY: Nothing from me your Honour thank you.

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Amendments

17 August 2022 - Deleted some details which might have identified the victim.

Decision last updated: 17 August 2022