R v Lawrence

[2019] NSWDC 577

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Lawrence [2019] NSWDC 577
Hearing dates:	27 September 2019
Date of orders:	17 October 2019
Decision date:	17 October 2019
Jurisdiction:	Criminal
Before:	Gartelmann SC DCJ
Decision:	The offender is sentenced to an aggregate term of imprisonment for 8 years commencing 17 October 2019 and expiring 16 October 2027. I set a non-parole period of 4 years 6 months expiring 16 April 2024.
Catchwords:	SENTENCING — Aggravating factors — Abuse of position of trust — Mitigating factors — advanced age — poor health CRIME — Sexual offences — Aggravated sexual assault — Aggravated indecent assault — Victim <16 years
Category:	Sentence
Parties:	Regina (Crown) Graeme Lawrence (Accused)
Representation:	Counsel: B Costello (Crown) P Winch (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) John Anthony Solicitors (Accused)
File Number(s):	2017/00343861
Publication restriction:	Publication of any matter which identifies or is likely to lead to the identification of the complainant in these proceedings is prohibited: s 578A(2) Crimes Act 1900.

Judgment

Introduction

1. The offender is to be sentenced for 2 offences. Count 1 is an offence of indecent assault in circumstances of aggravation namely that the victim was under the age of 16 years. Count 2 is an offence of sexual intercourse without consent in circumstances of aggravation namely that the victim was under the age of 16 years.

2. The maximum penalty applicable to each offence changed following amendments effective 17 March 1991. The maximum penalty applicable to Count 1 was 4 years before then but 7 years from then. The maximum penalty applicable to Count 2 was 10 years before then but 20 years from then.

3. No standard non parole period applies to either offence.

Objective

4. The offender was found guilty of the offences in a judge-alone trial. The facts of the offences are to be determined on the evidence at trial. That evidence established the following beyond reasonable doubt.

5. The victim was helping a youth band set up at the Newcastle Anglican cathedral in the mid-afternoon for an evening youth service. [1] He was wearing shorts and a t-shirt at the time.

   1. T21.9-14

6. In the early evening, the offender approached the victim and asked if he wanted to go for a walk. The victim agreed. [2] The offender took him for a walk behind the altar and showed him a gold bible or book.

   2. T22.7-9

7. The victim resumed helping the band until the youth service finished then commenced packing up. [3] The offender then invited the victim to the deanery saying other youth would be there. [4] The victim asked his mother if he could go and she agreed. [5] He continued packing up until the offender indicated it was time. [6]

   3. T26.13-20

   4. T26.30-31

   5. T75.25-29

   6. T34-36

8. The victim walked with the offender to the deanery. [7] The offender unlocked the front door. [8] The offender took the victim to a room with pictures of naked boys on the wall. [9] The offender asked the victim if he liked them and he said he did not. [10]

   7. T26.39-T27.17

   8. T27.45

   9. T28.12-30

   10. T29.15-18

9. The offender stood in front of the victim then pulled his shirt from his back over his head. [11] The offender then forced the victim onto his hands and knees with the shirt still over his head. The victim was shaking and scared. [12] The offender told him to relax. [13] The offender pulled the victim’s pants down then undid his belt and lowered his pants. The offender then pulled the victim’s pants down further, lifting him up to do so. [14]

   11. T.21-24

   12. T30.6-9

   13. T30.19

   14. T30.22-26

10. The offender played with the victim’s genitals for about 10 to 15 seconds. The offender told the victim to relax and asked if he liked it. The victim told the offender he did not like it and to stop. [15]

    15. 32.4-6

11. The offender pushed down on the victim’s back and pushed his penis against the victim’s anus. [16] The victim tried to move forward to get away. The offender held onto the victim’s shoulders and pushed harder. The offender again told the victim to relax. The offender held the victim’s shoulder or armpits as he pushed his penis into the victim’s anus. [17] The victim told the offender to stop. The offender again told the victim to relax. [18] The victim tried again to move forward. The offender kept trying to insert his penis in the victim’s anus. The offender then forcefully inserted his penis.

    16. T30.39-41

    17. T31.15-19

    18. T31.25-30

12. The victim jumped up and threw his t-shirt back over his head. He ran out of the room, pulling up his pants as he went. [19] The offender said, “Don’t bother telling anyone. You’re just a boy and I’m the dean. No one will believe you.” [20]

    19. T31.32-37

    20. T2.40-42

13. The victim ran back to the cathedral. He wiped away tears and adjusted his clothing. He did not talk to anyone. He found his mother talking to his aunts and stayed with them until his mother was ready to go. [21]

    21. T33.1-5

14. He had a shower when he got home and saw blood in his underpants and in the water in the shower. He still felt pain. He washed himself but felt dirty no matter how much he did. He cried himself to sleep. [22]

    22. T33.27-32

15. The objective seriousness of each offence must be assessed in light of the range of conduct, circumstances and consequences such offences covered. Some considerations apply equally to both offences.

16. There is no evidence the offences were other than an isolated occurrence.

17. The circumstance of aggravation constituting each offence was that the victim was aged under 16 years. The victim’s age was at the upper end of this age range at 15 years. The offender was aged about 50 years at the time. The offender therefore exploited the great disparity in their ages in committing the offences.

18. The offender also abused a position of trust as leader of the church to commit the offences. The evidence does not establish he was in a position of authority in relation to the victim. However, the victim and his mother must have trusted him because he was the dean. The offender abused this trust in inviting the victim to the deanery on a pretext in order to engage in sexual activity with him and abused it again to dissuade the victim from making any complaint about it. This significantly aggravates the offences.

19. The offender’s conduct in inviting the victim for a walk behind the altar and showing him the gold bible or book earlier in the evening is consistent with grooming behaviour but does not establish to the requisite standard he planned to commit the offences then. However, his conduct in inviting the victim to the deanery on the pretext other youth would be there and in leading the victim directly to the room with pictures of naked boys on the wall demonstrates he intended to engage in unlawful sexual activity with him at that time even if not in the way he ultimately did. The offences were not committed opportunistically.

20. The offender used force toward the victim before the acts constituting the offences. He pulled the victim’s shirt over his head then forced him onto his hands and knees. It can only be inferred he did so to disorient or disempower the victim in order to facilitate his acts. The victim was so scared he was shaking at this time.

21. The assault constituting Count 1 was grabbing the victim’s shoulders or armpits. The act of indecency constituting the offence was fondling the victim’s genitals. The act occurred over a period of about 10 to 15 seconds. The victim told the offender he did not like it when he was asked. The offender must have known the victim did not consent but persisted regardless.

22. The act constituting Count 2 was penile-anal sexual intercourse. The offender attempted and or committed the act several times and committed the final act forcefully. The victim told the offender to stop and tried to move away but the offender persisted regardless. The period over which the act occurred cannot be ascertained. The act caused the victim pain and later bleeding.

23. The immediate psychological effects of the offences on the victim manifested in him crying himself to sleep that night.

24. A victim impact statement was read in the proceedings. It illuminated the subsequent effects on the victim. It demonstrated they have been profound. The offences occurred when the victim was at a sensitive stage of development. It is unsurprising that their effects were not confined to his childhood but continued into adulthood and persist even now. It is only reasonable to expect offences of these kinds will cause such harm to victims. This must be recognised in assessing the seriousness of the offences.

25. Having regard to all these considerations, the objective seriousness of each offence is as follows: Count 1 is medium-high range; Count 2 is high range.

26. The maximum penalties applicable to the offences depend when they were committed. The higher maximum penalties effective on 17 March 1991 apply only if the evidence establishes beyond reasonable doubt the offences were committed on or after this date. Evidence bearing on this is as follows.

27. The victim said the offences occurred on an evening where the youth band played and there was a youth service at the cathedral. [23] The victim’s mother confirmed there were occasions when he attended the cathedral with the band and youth services occurred in 1990 and 1991. [24] She said these were infrequent, perhaps only two or three a year. [25]

    23. T21.9-14

    24. T74

    25. T81.1-3

28. Ms Bowyer, incumbent dean, said significant events in the cathedral were recorded in the cathedral diary. [26] The diary recorded youth rehearsals and festivities from 21 to 23 August 1991 and a youth service on 24 August 1991 [27] but no other entry for a youth service in that year. [28]

    26. Trial Exhibit G

    27. T102.18-37

    28. T105.23-24

29. Detective Sergeant Little, officer in charge of the investigation, said the diary recorded several concerts [29] while its register of services recorded a youth service on 24 August 1991 [30] and a music festival from 26 to 29 September 1991.

    29. T131

    30. T130

30. The offender maintained in evidence that a youth band played at a diocesan youth service on 24 August 1991 but no other occasion. [31] He accepted the band likely rehearsed at the cathedral on Saturday 10 August 1991 and may have performed at services for mental health week on Sunday 20 October 1991 and human rights day on Sunday 8 December 1991. [32]

    31. T157.14-15

    32. T198.05; T199.20

31. He said the cathedral diary but not the register of services would record a youth music event. He described the register of services as an important document in cathedral life but said it was not intended to record non-liturgical activities such as concerts and plays. He said the register of services recorded a youth Eucharist on 24 August 1991 only. Two other references to ‘youth’ concerned only rehearsals. [33]

    33. T140

32. The register of services records a service for evensong on Sunday 20 October 1991 but no youth service. It records a service for solidarity day on Sunday 8 December 1991 in the mid-afternoon but none in the evening or concerning youth.

33. The victim said his recollection was the events occurred on a Sunday night and he went to school the next day. [34] He said this based on what he could recall and to the best of his knowledge or belief. [35]

    34. T22.2-4

    35. T36.48-37.3; T46.40-45

34. The victim’s mother said it was either a Saturday or Sunday night when the victim told her the offender had asked him to go with other youths to the deanery following a service at the cathedral. [36]

    36. T75.21-23

35. The victim said he was wearing shorts and a t-shirt as it was not cold. He described the weather as “sort of” autumn. [37] He recalled it was warmer. He agreed it may have been before Easter but said he was not sure. [38]

    37. T21.46-7

    38. T48.47-49.37

36. The victim said he noticed no evidence of occupation when he entered the deanery as it was very empty. [39]

    39. T39.40

37. Mr Tilse, a builder, said he commenced work on the deanery about June 1991 and finished some 6 months later. [40] He said some furniture and personal effects were removed but about 50% remained. [41] A removalist’s quote and invoice confirm removals occurred between 17 April 1991 and 17 May 1991. [42]

    40. T107.44-49

    41. T108.44-50

    42. Trial Exhibits 4 and 5

38. The offender said his diary noted he and Mr Goyette his partner moved out of the deanery on 30 April 1991. [43] He said removalists took all furniture and decorations then. [44] Mr Goyette said no furniture remained in the private upstairs area of the deanery when he and the accused moved out of it during its renovations. [45]

    43. T135.11-12

    44. T139.05-16

    45. T252

39. This evidence as a whole establishes the following.

40. The offences occurred on an occasion where the youth band played and a service was held in the cathedral. Such events in the cathedral were recorded. The cathedral diary recorded events where the youth band may have played while its register of services recorded services in it. The cathedral diary and register of services respectively contain records for an event consistent with the occasion of the offences on Saturday 24 August 1991. There is a high degree of likelihood the offences occurred that night.

41. The cathedral diary also records events where the youth band may have played at services for mental health week on Sunday 20 October 1991 and for human rights day on Sunday 8 December 1991. However, the register of services records no youth service on either and no service in the evening of the latter. There is a possibility the offences occurred on Sunday 20 October 1991 if the service were not specifically for youth.

42. The cathedral diary and register of services records taken together are inconsistent with the offences having occurred at any other time when the victim was aged 15 years and in Year 10.

43. The victim’s recollection of the day of the week and the time of year were not expressed in certain terms. His reference to it being “sort of” autumn was in the context of questioning regarding the conditions. He did not otherwise purport to recall the time of year and his concession of the mere possibility it was before Easter must be seen in this context.

44. Conversely, the victim’s recollection the deanery was empty is consistent with its inoccupation during the period of its renovations. The removalist’s quote and invoice confirm removals occurred in the period 17 April 1991 and 17 May 1991. The builder’s evidence is consistent with this.

45. This evidence combines to establish beyond reasonable doubt that the offences must have been committed after the amendments became effective 17 March 1991. The sentences should therefore be determined on the basis of the maximum penalties that then became applicable.

Subjective

46. The offender is now aged 77 years. He has no record of prior convictions.

47. Testimonials from church leaders, distinguished citizens and parishioners record the offender’s extensive achievements and contributions to the community and altruism.

48. The offences can thus be seen to represent an aberration from prior good character. Prior good character generally warrants mitigation in sentencing an offender. However, the offender would not have held the position of dean but for this and his position assisted him to commit the offences. In these circumstances, his prior good character does not justify mitigation.

49. Information in the sentence proceedings regarding the offender’s subjective circumstances was otherwise limited. There is no evidence his upbringing was disadvantaged or dysfunctional in any way. There is no evidence regarding his educational achievements.

50. Evidence at trial indicated he held the position of dean of the Newcastle Anglican diocese for approximately 25 years. [46] Evidence in the sentence proceedings indicates he lost this position, and his involvement in the church as a consequence of these offences. This is of some significance given the centrality of the church to his life until this time.

    46. T226.46 – 48

51. The offence nevertheless retains support of his partner, family members and within the community generally. Evidence at trial established he has been in a relationship with his partner now for some 46 years. [47]

    47. T235.4 – 5

52. The offender’s general practitioner of some 18 years reports he suffers a depressive anxiety disorder. He has a long history of anxiety manifesting in claustrophobia and fear of flying. He has more recently developed a mood disorder for which he has been prescribed medication and engaged in cognitive behavioural therapy.

53. There is no evidence the offender’s mental conditions contributed to his offending so as to reduce his moral culpability for it or warrant less weight for general deterrence. However, it is reasonable to expect that his mental disorders will make his experience of custody more onerous.

54. The offender’s general practitioner also reports the offender suffers from physical health conditions including: type 2 diabetes mellitus; paroxysmal AF and TIA requiring anticoagulation; urinary incontinence following prostate cancer treated in 2004 with a radical prostatectomy; hypertension and high cholesterol; gastroesophageal reflux disease; osteoarthritis; and colorectal polyps. He is prescribed multiple medications for these conditions and requires dietary restrictions and exercises for their management. The offender suffered a fall on 24 September 2019 resulting in amnesia indicating significant head injury. He was admitted to hospital for 48 hours. Scans excluded intra-cerebral bleeding but cardiac monitoring was required. Ambulatory blood pressure monitoring was to be arranged. The cause of the fall remains unidentified.

55. There is no evidence the offender’s physical health conditions could not be adequately treated in custody. However, it is reasonable to assume they will also make his experience of it more onerous.

56. The offender committed the offences at or about 50 years but comes now to be sentenced relatively late in life at 77 years of age. Advanced age does not automatically justify a lesser sentence. The seriousness of an offence can require a sentence extending close to or even beyond an offender’s life expectancy, leaving limited or no practical prospect of release. Nevertheless, the fact that imprisonment will likely be more onerous for the offender because of his age and associated deterioration in his health must be taken into account along with all the other circumstances of the case.

57. The offences were committed in 1991. The offender was charged with them in 2017. Victims of sexual offences and particularly child victims can have good reason for not making complaint about it at or about the time. Evidence in this case confirms the offender took steps to ensure his victim’s silence.

58. Delay is in any event significant not because of its causes but its effects. There is no evidence the offender suffered hardship because of the delay or undertook rehabilitation during it. In these circumstances, delay of itself does not warrant particular mitigation.

59. The offender has been on bail since he was charged in 2017. There is no conditions of bail were so onerous or prolonged as to warrant mitigation.

60. It is reasonable to assume the offender will serve his sentences in protective custody. However, it cannot be assumed this will result in onerous conditions. Nor can it be assumed the offender will be at greater risk because of publicity regarding his case in these circumstances.

61. The offender maintains his innocence as is his right. However, it follows there is no evidence of remorse.

62. Nor is there is any evidence of rehabilitation completed or proposed. Nevertheless, the offender has committed no offence since he committed these offences 28 years ago. Further, he has complied with bail conditions over approximately two years. Finally, he retains support within the community. In these circumstances, some prospects of rehabilitation subsist.

46. The offender’s age and associated infirmity self-evidently indicate a low likelihood of him re-offending. In these circumstances, the offender poses a negligible risk of re-offending regardless of his lack of remorse or rehabilitation.

Determination

64. I turn now to the determination of the sentences having regard to all these circumstances.

65. The sentences imposed must fulfill the purposes of sentencing.

66. General deterrence requires substantial weight in sentencing for sexual offences against children particularly where, as here, they are committed in breach of a position of trust. Such offences must be firmly denounced. The offender must be adequately punished for them.

67. The harm such offences cause children has long been underappreciated. It must now be properly recognised. Invariably, it causes trauma manifesting in ongoing problems in victims’ lives. The harm caused to the victim of these offences must be reflected in the sentences imposed for them. However, it must also be acknowledged no sentence this court can impose on the offender could ever remediate it.

68. Specific deterrence and protection of the community do not warrant particular weight in sentencing this offender given his lack of record of prior convictions and negligible likelihood of re-offending. Conversely, neither does promotion of his rehabilitation warrant particular weight.

69. The purposes of sentencing pull in competing directions in the circumstances of this case. The requirements of general deterrence, denunciation and adequate punishment of the offender tend in one direction while recognition of the fact he now comes to be sentenced late in life tends in another. Nevertheless, the sentences to be imposed must reflect these competing considerations.

70. No sentence other than imprisonment is appropriate to fulfil these purposes of sentencing.

71. The sentence appropriate for each offence has been determined before considering the question of their accumulation or concurrency, taking into account the principle of totality. The offences were committed contemporaneously in the one isolated incident. However, each represents discrete acts contributing further to the harm to the victim.

72. The sentence for the more serious offence of aggravated sexual assault cannot completely comprehend the criminality in the less serious offence of aggravated indecent assault. A moderate degree of effective partial accumulation of the sentences is therefore warranted.

73. An aggregate sentence will be imposed. The term that would have been imposed for each offence had it been dealt with separately is as follows: Count 1: 2 years 6 months; Count 2: 7 years 6 months.

74. Special circumstances exist warranting a lesser proportion for the non-parole period relative to the term. It is reasonable to expect the offender’s age, poor physical health and mental health conditions will combine to make his experience of imprisonment more onerous. The non-parole period will be substantially less than it would otherwise have been for these reasons. No lesser non-parole period would be adequate to fulfill the purposes of sentencing.

75. No pre-sentence custody is to be taken into account. The sentence will therefore commence today.

Orders

76. The orders I make are as follows.

77. The offender is convicted of each offence.

78. The offender is sentenced to an aggregate term of imprisonment for 8 years commencing 17 October 2019 and expiring 16 October 2027. I set a non-parole period of 4 years 6 months expiring 16 April 2024.

79. The earliest date the offender will be eligible for consideration of release to parole will be 16 April 2024.

**********

Endnotes

Amendments

17 October 2019 - Paragraph 73 corrected on 17 October 2019 from: “Count 1: 7 years 6 months; Count 2: 2 years 6 months” to “Count 1: 2 years 6 months; Count 2: 7 years 6 months”.

Decision last updated: 17 October 2019