R v John Sidney Denham

[2019] NSWDC 212

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v John Sidney Denham [2019] NSWDC 212
Hearing dates:	27 February 2019
Decision date:	30 May 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [74]
Catchwords:	Historical child sex offences; aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Mill v R (1989) 166 CLR 59 R v Achurch (2011) 216 A Crim R 152 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Todd (1982) 2 NSWLR 517 R v Van Ryn [2016] NSWCCA 1 Veen v R [No. 2] (1998) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) John Sidney Denham (Offender)
Representation:	Counsel: M Coates (Crown) M McAuley (Offender)   Solicitors:
File Number(s):	17/93911
Publication restriction:	Pursuant to s 578A (2) of the Crimes Act 1900 a person shall not publish any matter which identifies the victim or is likely to lead to the identification of the victim in this matter. The victim’s name has been anonymised and he will be referred to herein as XX.

REMARKS ON SENTENCE

1. On 2 October 2018 the offender pleaded not guilty to four counts on an Indictment as follows:

Count 1 – Between 7 June 1981 and 6 June 1982 at Taree in the State of New South Wales, did indecently assault XX, a male person. The offence is pursuant to s 81 of the Crimes Act 1900 and the maximum penalty is 5 years imprisonment.

Count 2 – Between 7 June 1981 and 6 June 1982 at Taree in the State of New South Wales, did indecently assault XX, a male person. The offence is pursuant to s 81 of the Crimes Act 1900 and the maximum penalty is 5 years imprisonment.

Count 3 – Between 1 January 1982 and 31 December 1982 at Taree in the State of New South Wales, did indecently assault XX, a male person. The offence is pursuant to s 81 of the Crimes Act 1900 and the maximum penalty is 5 years imprisonment.

Count 4 - Between 1 January 1982 and 31 December 1982 at Taree in the State of New South Wales, did commit an act of buggery with XX. This offence is pursuant to s 79 of the Crimes Act 1900 and the maximum penalty is 14 years imprisonment.

2. The trial proceeded by judge alone and on 10 October 2018 the offender was found guilty of each of the four counts on the Indictment. The following facts may be derived from my judgment on verdict.

Count 1

3. In early 1982, the victim was in sixth class at primary school. At the commencement of the school year, there was a school mass and the victim was an altar boy at that mass. The offender was an assistant priest. After mass he asked the victim to stay back and said to the victim:

“You’ve been a good boy and done well, but there’s an initiation you have to go through that is part of being an altar boy.”

4. The offender was seated and asked the victim to walk over to him. The offender then put his hand up the victim’s shorts and started fondling his testicles and penis through his underwear. Whilst he was doing that, he was squeezing the victim’s testicles. He said to the victim that it was “part of the initiation process”.

Count 2

5. On the same occasion, following Count 1, the offender turned the victim around and pulled his pants down. He then started squeezing the victim’s buttocks and putting his hand through his legs and touching his scrotum. After squeezing his buttocks, he then pulled them apart and ran one of his fingers or his hand down between his buttocks and was rubbing the victim’s anus.

6. After the incident the offender told the victim that if he told anyone what had occurred, harm would come to him, his family would be kicked out of the church, he would go to hell and “God will hate you”.

Count 3

7. Later, but in the first half of 1982, the victim was playing handball in the playground at school. The offender was in the playground and pointed to the victim, saying to him “come here”. The victim walked towards the offender, who grabbed him by the right arm and said “You’re in trouble”. The offender then started to lead the victim away from the school, dragging him by the arm, to the presbytery.

8. The victim was then taken to the office and sat down at a desk, when the offender said to the victim:

“You’ve been bad and you’re going to be punished.”

The victim said:

“I haven’t been bad. I’ve been good.”

The victim felt terrified and the offender reached out and pulled him forward towards him by the lower arm. He then pulled the victim’s pants down, including his underpants, and was playing with the victim’s genitals by squeezing them hard and stroking his penis. At that time, the offender told the victim he was going to be punished.

Count 4

9. The offender turned the victim around and began touching his buttocks and anus. With his hand on the back of the victim between his shoulder blades, he pushed the victim down onto the desk and held him down by the back of the neck. The victim then felt the offender touch his bottom and anus with his hand and then penetrate his anus, after hearing the offender take his belt off, and undo his zipper.

10. When the victim’s anus was penetrated, he screamed “Stop” a few times and the offender told him to “Shut up”. The victim could feel the offender hitting the back of him.

11. The victim heard moaning or groaning noises from the offender, but after a short time he stopped. When the victim stood up he observed the offender seated in the chair with his pants pulled down to his mid-thighs. The victim felt blood running down his legs and saw blood on the offender’s penis and legs. The victim was then told to dress himself and the offender said to him:

“If you tell anyone, anyone at all, you’ll be taken away from your parents, your parents will be thrown out of the church, you will go to hell and maybe be taken away from your parents forever and never see them again, and there will be more trouble.”

The sentence hearing

12. The sentence hearing took place on 27 February 2019. The Crown sentence summary became Ex A. It contained the criminal antecedents of the offender, which were manifold, and will be outlined below. Also included were the Statement of Agreed Facts in respect of offences for which the offender had been sentenced in 2010, and further offences for which he had been sentenced in 2015, by Judge Syme of this court. The Remarks on Sentence of Judge Syme were also relied on by the Crown and Ex B was the Victim Impact Statement by the victim, which was not read in court. It is referred to below.

The offender’s evidence

13. The offender tendered a copy of life expectancy tables extracted from the handbook issued by Furzer Crestani, chartered accountants, for the purpose of establishing that the offender, who is now 77 years of age, has a life expectancy approximating 11 years.

14. The offender also relied on a report of Dr M Rodriguez dated 1 February 2019 (Ex 2). Under the heading “Account of sexual offences”, Dr Rodriguez noted that the offender stated he had difficulty understanding why he had molested children under his care. Despite a long history of sexual offending against young boys, he continued to deny having committed offences against the victim XX. He had regarded himself as a homosexual throughout his life, but denied a history of paraphilic behaviour. Dr Rodriguez was of the opinion that the offender met the criteria for Paedophilic Disorder.

15. Under the heading “Remorse”, Dr Rodriguez noted that the offender expressed remorse for his sexual offences, saying he could not excuse his actions which he recognised were abhorrent. The author noted that the offender recognised the pain and suffering he had caused his victims and said that he often prays for “forgiveness”.

16. The offender was noted to be an unreliable historian. In Dr Rodriguez’s opinion, rehabilitation programs would be inappropriate and unlikely to result in therapeutic effectiveness, due to his paraphilic disorder, age and the passage of time. He was assessed as a high risk of sexually re-offending upon static testing, however, given his advanced age, his medical conditions and the fact that he has never had the opportunity to re-enter society, his risk of re‑offending is likely to be low.

17. The offender also relied on an affidavit of his solicitor, Stephen McAuley, sworn on 21 September 2018. That affidavit set out a number of medical conditions suffered by the offender, at the time the affidavit was sworn, and consequential deficiencies that arise from those medical conditions. It also set out some details of threats to, and assaults on, the offender whilst he has been in custody.

The Crown submissions

18. The Crown relied on a thorough written outline of submissions in which it set out well known principles of sentencing in respect of child sexual offences.

19. In respect of Counts 1 and 2, the Crown submitted that, at the time of the offending, indecent assault pursuant to s 81 of the Crimes Act encapsulated a broad category of offending which included digital penetration and fellatio. It also included consensual conduct between two adult males. It was submitted that it was important that there was no age graduation included as an element of the offences. Here, the victim was aged 11 years and the offender was aged either 38 or 39 years of age. The young age of the victim was a significant aggravating feature and there was a considerable power imbalance between the offender and the victim. The victim was also vulnerable by virtue of his age, and being alone with the offender.

20. After both indecent assaults, the offender threatened the victim by telling him he would go to hell and he might be taken away from his family. The offender also threatened that the victim’s family would be kicked out of the church. This had a significant impact upon the victim as his mother was deeply religious and was heavily involved in the church.

21. The Crown submitted there was a level of planning involved in the offending. The offender fabricated a story about the initiation process as a guise for indecently assaulting the victim.

22. The Crown submitted that the offender also abused his trust as a priest towards the victim, who was an altar boy. This was an aggravating factor pursuant to s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”).

23. The Crown submitted that in relation to Count 1 the objective seriousness of the offending was slightly below the mid-point of objective seriousness for an offence pursuant to s 81.

24. In relation to Count 2, the Crown submitted that the objective seriousness of the offending was at the mid-point of objective seriousness for an offence pursuant to s 81.

25. Counts 3 and 4 also occurred on the same day as each other. The offender used force to drag the victim from the safety of the school playground to the presbytery and told him he was in trouble. The victim stated that he was scared, and once in the presbytery, the offender again told the victim he had been bad and had to be punished. The offender then pulled down the victim’s pants and started to fondle his genitals. The offending conduct included squeezing the victim’s testicles hard and stroking his penis. The victim stated that it hurt and he was terrified.

26. Count 4 was an offence of buggery pursuant to s 79 of the Crimes Act, and included penile/anal intercourse. The section at the time extended to consensual activity between consenting adults and there was no age component as an element of the offence. Therefore the non-consensual nature of the offending here and the young age of the victim increased the objective seriousness of the offending. It was clear from the victim’s evidence that the victim was not consenting and that he was suffering intense pain, which the offender disregarded. It is clear that he suffered an injury to his anus and was bleeding as a result of the assault.

27. The offending was also accompanied by threats made by the offender to the victim, that he would be taken away from his parents and his parents would be thrown out of the church.

28. The Crown submitted that the victim was vulnerable, given the significant age, size and power imbalance between the offender and the victim. There was further, a level of planning in the offence as the offender had isolated the victim in the playground, grabbed him and forcibly took him to the presbytery, under the pretence that the victim was in trouble.

29. An aggravating factor of this offending was that the offender abused his position of trust as a priest towards a young student, which was an abuse of trust pursuant to s 21A(2)(k) of the CSPA.

30. The Crown submitted that the objective seriousness of the offending in relation to Count 3 was at the mid-point of an offence pursuant to s 81.

31. The Crown submitted that the objective seriousness of the offending for Count 4 would be towards the top of the range of objective seriousness for an offence pursuant to s 79.

32. The Crown submitted that notwithstanding the offending occurred in the early 1980’s, pursuant to s 25AA of the CSPA, which commenced on 31 August 2018, the offender was to be sentenced in accordance with sentencing patterns and practices at the time of sentencing, rather than at the time of the offending. It was submitted that the correct approach for the court in sentencing here was to have regard to:

1. The purposes of sentencing set out in s 3A of the CSPA.

2. The maximum penalty.

3. The objective seriousness of the offending and any aggravating factors, including the current knowledge of trauma of sexual abuse of children.

4. The moral culpability of the offender.

5. Any subjective or mitigating factors.

33. The Crown submitted that the offences are now repealed, however, maximum penalties for similar offences are the same as at the time of the offending conduct. There is no Standard Non-Parole Period.

34. The Crown referred to authorities which establish that historical sexual offences against children should not be considered stale crimes, the fact that offenders may enjoy a life free from punishment for their crimes during any delay in them being prosecuted, and that it is notorious that victims are reluctant to come forward and make such complaints which allow the criminality of an offender to remain undetected for many years. It was submitted by the Crown that in isolation, any delay in sentencing does not warrant a reduction in sentence, or a finding of special circumstances, however, it may be part of the matrix that results in a finding of special circumstances.

35. The Crown’s written submissions referred to general principles of sentencing, including general deterrence and specific deterrence, which are applicable here.

36. The Crown further submitted that accumulation was required in that the four separate offences took place over two separate courses of conduct. The Crown submitted that each sentence required a level of accumulation to reflect:

“(a) They are separate distinct offences with two separate periods of offending;

(b) The need for distinct punishment for each offence to reflect the criminality and objective seriousness of each offence;

(c) The overall criminality for which the offender is to be sentenced; and

(d) This also involves considering the principle of totality.”

37. The Crown also submitted that there was a need for a level of accumulation between the current offences and sentences imposed for previous offences in 2010 and 2015. The Crown conceded that the principle of totality would require a level of concurrency with those previous sentences. Any aggregate or overall sentence must be just and appropriate to the totality of the offending behaviour, referring to Mill v R (1989) 166 CLR 59 at p 64, where the court adopted the approach of Street CJ in R v Todd (1982) 2 NSWLR 517.

38. It was submitted that the current offences occurred during the same time period in which the offences for which the offender has already been sentenced occurred. However, the offender had not served the whole of that sentence and his earliest release date was 22 January 2028. The total sentence expires on 22 January 2033.

39. In his oral submissions, the Crown rehearsed the written submissions as to the circumstances of the offending in each count, and where each count lay in respect of its objective seriousness for an offence pursuant to s 81, (in respect of Counts 1-3), and s 79 (in respect of Count 4).

40. The Crown noted that in respect of the application of s 25AA, the offence of buggery was not listed in the Schedule to the CSPA relevant to that section, however, it was the type of offence encapsulated by s 25AA. The very purpose of the section was to ensure that offenders are sentenced in respect of present day sentencing practices.

41. The Crown further underlined the importance of general deterrence and specific deterrence in the sentencing process here. The main issue in sentencing here was the accumulation of sentences with both sentences imposed in 2010 and 2015.

42. In 2010, of the numerous offences for which the offender was sentenced, two were for the offence of buggery (sequences 6 and 7), and for each the offender was sentenced to a non-parole period of 6 years with a balance of term of 9 years.

43. Again, in 2015, the offender was sentenced inter alia on two counts of buggery. In respect of Count 8, a non-parole period of 8 years and 2 months was imposed, with a head sentence of 12 years and 7 months. In respect of Count 22, the same sentence was imposed. Both sentences were clearly imposed before the introduction of s 25AA, and against a maximum penalty of 14 years for the offence.

44. In respect of the numerous counts of indecent assault for which the offender was sentenced, the Crown submitted that a range of terms of imprisonment from 9 months to 2 years were imposed, depending on the circumstances and objective seriousness of the offending.

45. The Crown submitted that there was no basis for finding special circumstances here, and given the seriousness of the offending, the offender would have a significant parole period. It was submitted, however, that the ratio between head sentence and non-parole period may be adjusted without a finding of special circumstances, given the need to accumulate this sentence with the sentences the offender is currently serving. An appropriate approach was to aggregate any sentence pursuant to s 53A of the CSPA.

The offender’s submissions

46. The offender, by his Counsel, relied on a written outline of submissions. The offender was born on 8 September 1942 and is 76 years of age. He was first imprisoned on 14 August 2008. His non-parole period at that time was 13 years and 10 months, with an additional term of 6 years, and a total term of 19 years and 10 months.

47. On 23 January 2015, the offender was sentenced following further pleas of guilty to charges of sexual assault involving children to an aggregate term of 18 years, to commence on 23 January 2015 and expiring on 22 January 2033, with a non-parole period of 13 years. He is eligible for parole on 22 January 2028. The total accumulated sentences required the offender to serve a period of custody of 19 years, 5 months and 9 days, with a period of 5 years supervision by the Probation and Parole Service upon his release. An appeal to the Court of Criminal Appeal was dismissed.

48. The Court of Criminal Appeal noted that, in respect of the 2010 sentence, 39 victims were involved and the pleas of guilty were entered in relation to 29 separate charges, with 32 Form 1 matters being taken into account. The 2015 sentence involved 18 victims, with pleas of guilty entered in relation to 25 charges, and 23 matters taken into account on a Form 1. Forty-three of the previous offences were offences of indecent assault pursuant to s 81, and four of those offences were pursuant to s 79 (buggery).

49. The written submissions referred to the Furzer Crestani Life Expectancy Table which assessed the life expectancy for a 77 year old Australian male at 11.45 years.

50. The written submissions also referred to the affidavit of Stephen McAuley, solicitor, sworn 21 September 2018, which set out various medical conditions suffered by the offender which included removal of his prostate which caused urinary frequency, hypotension, atrial fibrillation, high cholesterol and gout. The affidavit also referred to other hardships the offender suffered in protective custody, including being threatened by other prisoners.

46. The written submissions outline passages from the report of Dr Rodriguez (Ex 2), including his expression of remorse as set out above.

47. The submissions characterised the sentencing of the offender as “a challenging task”, involving the balancing of many different, and often conflicting, matters. It was submitted that any emotional response should be set aside and that sympathy for the victim of the crime cannot be allowed to cloud the sentencing judge’s vision. Against that, it was acknowledged that the offences are serious offences involving substantial injury to the victim, a child who was vulnerable and involved threats to the victim, a level of planning and an abuse of trust. As there was more than one offence, account must be taken of the totality of the circumstances so that the overall sentence was just and appropriate, and a crushing sentence was to be avoided. It was therefore appropriate to take into account the offender’s medical conditions and age.

48. It was submitted that it was likely, given the offender’s present sentence, he would either die in gaol or during a period on parole, when he under supervision of the Probation and Parole Service.

49. In his oral submissions, Counsel rehearsed those written submissions which referred to the offender’s life expectancy, prospects of rehabilitation and risk of re-offending, as set out in Dr Rodriguez’s report.

50. It was submitted that applying the principle of totality here, it was appropriate to backdate the sentence, or alternatively impose a sentence from a date shortly after the 2015 sentence commenced. It was submitted that the court would fall into error if any sentence was to date from the present, as it would not take into account his long history of imprisonment. It was submitted that any sentences should be totally concurrent with the current sentence he was serving.

Determination

56. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

57. Given that s 81 of the Crimes Act took into account a broad range of criminal conduct, I assess the objective seriousness of the offending in Count 1 as below the mid-range for an offence pursuant to s 81. It still involved serious offending, particularly given the age differential between the offender and the victim, and fell within the upper part of the lower range for such an offence.

58. I do not accept the Crown’s submission that the offending in Count 2 fell at the “mid-point” for an offence pursuant to s 81. Again, given the broad range of criminal conduct encompassed by s 81, this offending fell below the mid‑range, but towards the upper part of the low range for an offence pursuant to s 81.

59. Count 3 was more serious offending. It fell just below the mid-range for an offence pursuant to s 81.

60. I accept the Crown’s submission that the offending in Count 4 fell well above mid‑range for an offence pursuant to s 79 of the Crimes Act and towards the top of the upper range. It involved anal penetration of an 11 year old boy against his protestations to stop. Not only did the offending involve a level of planning, a vulnerable victim and an abuse of trust, but threats were made to the victim that, amongst other things, his family would be thrown out of the church. This was of particular significance to the victim whose mother was a devout member of the church.

61. Also relevant to the sentencing process is s 25AA, which was introduced into the CSPA on 31 August 2018. It provides as follows:

“(1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, and not at the time of the offence.

(2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied not at the time of the offence, but at the time of sentencing.

(3) When sentencing an offender for a child sexual offence, the court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

(4) This section does not affect s 19.

(5) In this section:

‘Child sexual offence’ means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years:

‘(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,

(b) an offence under a provision of that Act set out in column 1 of Schedule 1A to that Act,

(c) an offence of attempting to commit any offence referred to in paragraphs (a) or (b),

(d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a) – (c).”

62. Pursuant to s 25AA, when sentencing for historical child sex offences, there is no need to consider the past pattern of sentences. Rather, the maximum penalty applicable at the time of the offending is relevant as a guidepost in the sentencing process and I am to disregard any increase in the maximum penalty for the offences as they currently appear in the Crimes Act 1900. I am then to assess the objective seriousness of the offending conduct, taking into account all of the relevant circumstances, and then have regard to any aggravating or mitigating factors. I note s 25AA does not apply to Count 4, as the offence of buggery, pursuant to s 79, does not appear in Schedule 1A of the Crimes Act.

63. I have had regard to the maximum penalty of 5 years imprisonment pursuant to s 81 in respect of Counts 1, 2 and 3, and the maximum penalty of 14 years imprisonment for an offence pursuant to s 79 in respect of Count 4, as guideposts in the sentencing process. General deterrence is important in the sentencing for child sex offenders, in that a clear message must be sent to the community that Parliament has proscribed lengthy maximum penalties for such offences, and the courts will, in appropriate cases, impose lengthy sentences on those who offend against the most vulnerable members of the community. Specific deterrence is also important here.

64. I take into account the following aggravating factors pursuant to s 21A(2) of the CSPA:

(2)(d) The offender had a record of previous convictions

The offender’s criminal antecedents are discussed below.

(2)(g) The injury, emotional harm, loss or damage caused by the offence was substantial

The emotional harm in this case is set out in the Victim Impact Statement which I refer to below.

(2)(k) The offender abused a position of trust or authority in relation to the victim

I accept the Crown’s submission that the offender abused his position of trust as a priest towards the victim who was an altar boy, in respect of Counts 1 and 2, and a student in the playground of a primary school in respect of Counts 3 and 4.

(2)(l) The victim was vulnerable because he was very young

I accept the Crown’s submission that the victim was vulnerable being 11 years of age at the time of the offending. There was also a significant age difference, and size and power imbalance between the offender and the victim.

(2)(n) The offence was part of a planned or organised criminal activity

I accept the Crown’s submission that in respect of Counts 3 and 4 there was a level of planning in the offending, as the offender had isolated the victim in the playground, grabbed him and forcibly took him to the presbytery under the pretence that the victim was in trouble.

65. In structuring a sentence that is just and appropriate, and taking into account the principles of totality and proportionality, the court must have regard to the criminal antecedents of the offender. In 2016, the Court of Criminal Appeal described the 2010 and 2015 sentences imposed on the offender, as outlined above, by stating:

“The overall scale and nature of the applicant’s offending is staggering.”

It characterised it as serious offending in relation to 57 children over many years. In Veen v R [No. 2] (1998) 164 CLR 465 at 477 the plurality in the High Court said:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

This is a clear case where the antecedent criminal history calls for denunciation in the sentencing process.

66. The only mitigating factor relied on by the offender was his remorse as noted by Dr Rodriguez. Despite his long history of sexual offending against young boys, the offender denied having committed the subject offences against this victim. At trial, that denial was based on the offender having no recollection of the victim. It was an entirely cynical basis upon which to prosecute a defence, and consistently, the offender has demonstrated no remorse for his offending. I therefore reject the expression of remorse outlined by Dr Rodriguez, as set out above. In fact, the offender has not recognised the pain and suffering caused to the victim of these offences at all. The court must view with some circumspection the subjective matters set out by Dr Rodriguez where the offender has given no evidence at all of such matters.

67. The Victim Impact Statement (Ex B) was a poignant exposition of the impact of sexual abuse on a child. It set out in terms the very real impact upon a happy childhood, occasioned by such a terrifying criminal event which affected every aspect of the victim’s life thereafter. Particularly relevant was the threats made to the victim that he would be taken away from his family, that he would go to hell, and that his family would be driven out of the church. The latter threat was particularly telling, given that the victim’s mother was a devout Catholic. The statement outlines the changes undergone by the victim, his spiral into alcohol and drug abuse as a very young person, and the psychological impact it has had on all of his relationships throughout his adult life. The courts have long recognised the psychological harm caused to victims of child sexual offences, and the fact that such harm may endure for the lifetime of a victim. Whilst there is no medical evidence against which to assess the Victim Impact Statement, it is a matter of common sense that these crimes have had a substantial emotional impact on the victim. I therefore take the Victim Impact Statement into account, and I make it clear, I have done so not to aggravate the offender’s culpability.

68. As to the medical conditions suffered by the offender, relevant principles to be applied are set out by the Court of Criminal Appeal R v Achurch (2011) 216 A Crim R 152 at [117] to [119]. First, the weight given to such matters much be assessed in the light of all of the circumstances of the case, and an appropriate balance is to be maintained between the criminality of the offender and any damage to his health or shortening of life. Whilst poor physical health and its impact upon the severity of an offender’s imprisonment are relevant factors in sentencing, the court went on to hold that ill health does not necessarily require that a sentence be mitigated from that which would otherwise be appropriate. Given the lengthy sentence the offender is already serving, his medical condition does not weigh heavily in the sentencing process here. Nor does the hardship the offender has experienced in custody from time to time, as outlined in the affidavit of his solicitor.

69. This is an appropriate case for an aggregate sentence pursuant to s 53A of the CSPA. Before proceeding to a sentence, however, I am required to provide the indicative sentences in respect of each count for the purpose of transparency in the sentencing process. The indicative sentences are as follows:

Count 1 – 12 months imprisonment

Count 2 – 2 years imprisonment

Count 3 – 2 years imprisonment

Count 4 – 12 years and 6 months imprisonment

70. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

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

71. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

72. In arriving at the aggregate sentence here, I have taken into account the objective seriousness of the offending, and the subjective matters set out above, including the offender’s medical condition. I am satisfied that the threshold contained in s 5 of the CSPA has been crossed and there is no alternative to imposing a sentence of imprisonment in this matter. In applying the principles of totality and proportionality to the offending conduct here, I take into account there were two occasions when the offending took place, and that sentences for Counts 1 and 2, and sentences for Counts 3 and 4, could be served concurrently, but otherwise the counts should be subject to accumulation. I therefore intend to sentence the offender to a term of imprisonment of 13 years. Given the lengthy sentence already being served by the offender, I make a finding of special circumstances so as to vary the ratio of non-parole period and head sentence based on his age and medical conditions. The non‑parole period will be 7 years and 6 months.

73. A significant difficulty in sentencing here is structuring the sentence in a proportionate way so as to make it congruent with the offender’s current sentence. I reject the offender’s submission that any sentence should commence immediately so as to be served entirely concurrently with the offender’s present sentences imposed in 2010 and 2015. I do, however, accept the Crown submission that the sentence is to be aggregated with those sentences, so as to represent some accumulation in sentencing. I therefore intend to order that the offender’s non-parole period for the subject offences commence on 23 January 2022 and terminate on 22 July 2029. The balance of term will commence on 23 July 2029 and terminate on 22 January 2035. The net effect of that sentence will mean that the offender’s current non-parole period is extended by 1 year and 6 months, and he will be now first eligible for parole on 22 July 2029. The balance of sentence will extend any period of supervision by the Probation and Parole Service for a period of 6 months, to 5 years and 6 months.

Orders

74. I hereby make the following orders:

1. You are convicted of the following offences:

1. Count 1 – Between 7 June 1981 and 6 June 1982 at Taree in the State of New South Wales, you did indecently assault XX, a male person, pursuant to s 81 of the Crimes Act 1900.

2. Count 2 – Between 7 June 1981 and 6 June 1982 at Taree in the State of New South Wales, you did indecently assault XX, a male person, pursuant to s 81 of the Crimes Act 1900.

3. Count 3 – Between 1 January 1982 and 31 December 1982 at Taree in the State of New South Wales, you did indecently assault XX, a male person, pursuant to s 81 of the Crimes Act 1900.

4. Count 4 – Between 1 January 1982 and 31 December 1982 at Taree in the State of New South Wales, you did commit an act of buggery with XX, pursuant to s 79 of the Crimes Act 1900.

2. I sentence you to a non-parole period of 7 years and 6 months to commence on 23 January 2022 and to terminate on 22 July 2029.

3. The balance of term of 5 years and 6 months will commence on 23 July 2029 and terminate on 22 January 2035.

75. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date, and upon what conditions.

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Amendments

04 June 2019 - Paragraph 3 - Amendment in accordance with publication restriction.

Decision last updated: 04 June 2019