R v Lord - [2013] NSWDC 16

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Lord [2013] NSWDC 16
Hearing dates: 9 November 2012
Decision date: 18 January 2013
Before: King SC DCJ
Decision:
Sentenced to imprisonment - consisting of an overall head sentence of 10 years with an overall NPP of 6 years

Catchwords: CRIMINAL LAW - Sentence - Forms 1 - aggravated sexual intercourse with child under 10 years and under authority - aggravated indecent assault of child under 16 - aggravated act of indecency - multiple counts - breach of trust - "Ellis" discount
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Hibberd [2009] NSWCCA 20
Dousha v R NSWCCA 263
R v Henry [2009] NSWCCA 69
R v Clinton [2009] NSWCCA 276
Pearce v R [1998] 194 CLR 610
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Category: Sentence
Parties: The Crown
Jonathan Luke Lord
Representation: Mr C Smith (Offender)
Director of Public Prosecution
Legal Aid Commission (Offender)

File Number(s): 2011/333839
Publication restriction: There is to be no publication of the names of the complainants or of any material which may tend to identify them.

SENTENCE

Jonathan Lord appears for sentence in respect of thirteen offences concerning his sexual abuse of prepubescent male children. It is necessary to first provide some background in relation to the offences.

He was arrested by police on 14 October 2011 and charged with a number of offences relating to what is to be referred to as the first group of victims. He was again arrested on 24 October 2011 and charged with offences relating to a second group of victims, and at that time was refused bail. He has been in custody since that date.

Additional charges were laid on 31 October 2011 in respect of a third group of victims, and in January 2012, in relation to a fourth group of victims.

On 23 August 2012, the offender pleaded guilty to the counts now before the Court and was committed for sentence from Central Local Court.

In summary, the offending occurred between 1 January 2009 and 13 October 2011. The thirteen offences for which he is to be sentenced relate to twelve victims. There are two counts of aggravated sexual intercourse with a child under ten and under authority, contrary to s 66A(2) of the Crimes Act, and 11 counts of aggravated indecent assault of a child under sixteen, contrary to s 61M(2) of the Crimes Act.

In addition to those thirteen offences, the Court is asked to take into account in respect of ten of the thirteen offences a further Form 1. Between the ten Forms 1, there is a total of sixteen further offences to be taken into account. They are ten offences of aggravated indecent assault of a child under sixteen, contrary to s 61M(2); five offences of aggravated act of indecency with or towards a person under ten, contrary to s 61O(2); and one of incite aggravated act of indecency with or towards a person under sixteen and under authority, contrary to s 61O(1).

Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 12 and 13 are all offences of aggravated indecent assault on a person under sixteen, contrary to s 61M(2). A maximum term of imprisonment of ten years is provided, and there is a standard non-parole period of eight years in relation to such offences.

Counts 10 and 11 are counts of sexual intercourse with a child under ten and under authority, contrary to s 66A(2). The maximum term of imprisonment in relation to such an offence is one of life imprisonment, and a standard non-parole period of fifteen years is provided.

In respect of the offences contained on the ten Forms 1, in addition to those contrary to s 61M(2), in respect of which I have already referred to the maximum term for imprisonment and the standard non-parole period, the additional Form 1 offences involving an act of indecency towards a person under sixteen in circumstances of aggravation, namely, under authority, contrary to s 61O(1), have a maximum term of imprisonment of five years, and in respect of inciting an act of indecency, person being under ten years, contrary to s 61O(2), the maximum term for imprisonment is seven years.

The Crown accepts that the offender pleaded guilty in relation to all offences at the earliest opportunity and that he is entitled to a 25% discount for the utility of the plea alone as referred to in R v Thomson; R v Houlton (2000) 49 NSWLR 383. Such a discount will be provided in respect of each of the matters.

The facts have been agreed, and are as follows. The offender was employed by the YMCA Caringbah as a casual childcare assistant, commencing on 25 August 2009. His employment involved before and after-school care, and he worked at the YMCA's various centres, operating out of local schools.

In February 2010, the offender was employed as a permanent part-time coordinator at the YMCA's St Patrick's Centre. He worked there for the entire year and also worked permanently at the YMCA's vacation care centres, operating out of Laguna Street and St Patrick's, Sutherland. During this time, the offender also worked at the YMCA's crèche on one or two days a week in the mornings. In 2011, the offender worked the first term at St Patrick's before transferring to Caringbah Public School Centre as coordinator.

At the relevant time, the offender resided with his mother and stepfather.

FIRST GROUP OF VICTIMS

Victim 1: A

A and his younger brother attended the Laguna Street vacation care centre over the school holiday period of December 2010 to January 2011. A first met the offender at that time. He told police, ' "I didn't have anybody to play with except for my brother", and so he said, "Do you want to be my friend?"' At the end of the school holidays, the offender wrote A a note, with words similar to, "Dear A, I think you are awesome. I will miss you. I will see you soon."

Count 1: Aggravated indecent assault, person under sixteen - s 61M(2)

During the September 2011 school holidays, A and his brother again attended the Laguna Street vacation centre. A was eight years old.

On 30 September 2011, an excursion was planned for the children attending the centre to go to a circus factory in Hornsby. Approximately 50 children and four staff members took part in the excursion. The offender was one of the staff members, and both A and his brother went as well. That day, A gave the offender a special coin "because he was my best pal".

On the way to the circus factory, the offender sat on a seat in between A and his brother. The bus was particularly crowded, as a coach with seatbelts had been booked which only allowed room for two to a seat. The staff were squeezed together with the children. The offender asked A if he would like to sit on his lap, and A said yes. He was facing forward. At the time, A was playing the Pokémon card game with a boy sitting on the other side of him. The offender started to touch A around the genital region and under his shirt on his chest. He put his hand into A's pocket and rubbed A's penis with his fingers. The offender also put his hand down A's jeans, on the top of his underpants and rubbed A's penis. A asked the offender a number of times to stop what he was doing. He later stated to police, "I had to tell him, 'Do you want to play cards?' so I would get him away from touching my private part." During the lunch break that day, A felt nervous, worrying if the offender would do it again.

Form 1 (attached to Count 1): Aggravated indecent assault of person under sixteen - s 61M(2)

On the return trip from the circus factory, the offender again sat next to A, who was sitting up against the window. A stated that he felt "nervous because I thought he was going to do what he was doing on the way there". The offender cuddled up to A, putting his arm around his neck. A did not want the offender to do this to him, so he took off his seatbelt and moved more to the corner of the seat and started looking out the window. The offender kept cuddling A, and then he touched A in the genital region. He put his hand in A's pocket and rubbed A's penis with his thumb. During the course of the bus trip, the offender asked A if he had ever played a game where two best friends play tongue wrestling, and A said, "No, and I don't want to."

A and his brother were collected that afternoon by their mother. In the car trip on the way home, A told his mother about the offender's tongue wrestle question. That night, his mother told him that he had done the right thing telling her, and that she was going to the YMCA and the police to speak with them about it. A said to his mother, "John also touched me here (putting his hand on his groin) and he kept putting his hand up my shirt and was rubbing my chest and my tummy." A's mother reported the matter to police, and a week later A was interviewed and made a recorded statement.

Victim 2: B

B and his younger brother BB had attended the Caringbah after-school care service run by the YMCA since early 2010. In early August 2011, the offender spoke with the boy's mother and offered his services as a babysitter. When asked what his rate was, the offender replied that he didn't have a set rate, but that he tried to help people where he could. He asked that this be kept quiet as he did not offer his services to everyone. Two weeks later he repeated his offer. However, it was not accepted.

On 9 October 2011, B and BB's mother decided to talk with them about strangers and odd behaviour, and being careful when they were out. During the course of the discussion, B disclosed to his mother that the offender had touched his "willy". He told his mother that it had happened more than once and that it happened when he would sit on the offender's lap, reading books or drawing.

Following this disclosure, the matter was reported to police, and B was interviewed on 14 October 2011 and made a recorded statement. B told police that the offender had touched him on the "willy" last term. He provided details to police of two occasions when he had been assaulted by the offender.

Count 2: Aggravated indecent assault, person under sixteen - s 61M(2)

The first time the offender touched B was sometime around March 2011, while B was at after-school day care. At the time B was nine years old. B was sitting in the quiet corner, and the offender came over to him and said, "Do you want to read a book with me?" B said that he did, and the offender asked B to sit on his lap, which he did. The offender was sitting on a lounge at this time. The offender started to read to B and, as he did so, the offender rubbed B's penis with his hand in a circular motion on the outside of his clothes. He continued to do so while they read the book together, stopping before they finished reading it. B remembers that this was the first time, as he remembers it was a "weird feeling".

Form 1 (attached to Count 2): Aggravated indecent assault, person under sixteen - s 61M(2)

The last time that B can remember the offender touching him was around September 2011, while he was at after-school care. He was ten years old. B was sitting at a table, drawing pictures with the offender, and sitting on the offender's lap. The offender had drawn a picture for B, and he was about to draw a picture for the offender in return. The offender started to touch B's penis with his fingers in a circular motion over the top of B's clothes. This conduct took place for about 30 seconds.

FIRST ARREST

On 14 October 2011 the offender attended Miranda police station, where he was arrested and cautioned. On the advice of his solicitor, he declined to be interviewed. He was then charged in relation to the offences already referred to in the facts. He was granted conditional bail.

SECOND GROUP OF VICTIMS

Victim 3: C

C's mother met the offender through his mother, with whom she started working in September 2010. As a single mother, Ms C was in need of a babysitter to take care of C every Saturday when she was required to work. Following a recommendation made by the offender's mother, Ms C engaged the offender to babysit C on Saturday mornings, commencing around December 2010. Ms C was aware that the offender was employed as a childcare worker for the YMCA. From December 2010 until October 2011, the offender would look after C every Saturday, and on other occasions as well when the need would arise. The offender became quite involved with the family and would willingly make himself available to baby-sit.

On 13 October 2011, the offender and his mother advised Ms C that the offender had been suspended from his work at the YMCA following an incident which was said to have occurred with a boy on a vacation care day. At the time C was in the room, watching television. After the offender and his mother left, Ms C asked C whether the accused had ever touched him on the "willy". C replied, "Yes" and told his mother that the offender rubbed him on the top of his clothes. He then said that he was embarrassed and did not want to talk about it, putting a rug over his head. The matter was reported to police on 14 October 2011.

C took part in an interview with police on 18 October 2011, in which he made a recorded statement. He stated that the offender had touched him on the "willy". C disclosed a number of incidents between February and October 2011 when touching took place. He told police,

"I like him when he's doing other things...like 'cause he has a iPhone(sic) and I have a iPhone(sic), so he downloads things to me...stuff like that."

Count 3: Aggravated indecent assault, person under sixteen - s 61M(2)

The first time that the offender touched C was the first Saturday after he had returned to school for the new year, 5 February 2011. At the time C was eight years old.

The offender was babysitting C at C's home while his mother was at work. They were watching television together, with C lying on a pouffe. The offender approached C, and began to rub C's penis softly with his hand on the outside of C's clothes. C said to the offender "don't". The offender did not reply and kept touching C.

Form 1 (attached to Count 3): Aggravated indecent assault, person under sixteen - s 61M(2)

The last time that the offender touched C was on 8 October 2011. C was nine years old.

The offender was again babysitting C that day. After running some errands relating to their respective mother's business, the offender and C returned to C's house. C turned on the television and lay down in his usual position on the pouffe, and the offender lay on the couch behind him. The offender reached over and began to touch C on the penis, rubbing him on the outside of his pants. At the time C was lying sideways, and he kept turning over to try and stop the offender from touching him. When C rolled away, the offender tried to reach for him, however nothing further happened once C had rolled away.

Victim 4: D

In 2009 the offender commenced work with the YMCA, and in the course of that employment met D, who attended St. Patrick's after school care. Ms D, D's mother, observed the offender to go above and beyond the call of duty to care for the children. In the beginning of 2011, the offender offered his services as a babysitter to Ms D. After speaking with another parent who advised that the offender had babysat for his family and they were happy with his service, Ms D engaged the offender to baby-sit D on 12 May 2011 and again on 1 July 2011. The offender offered to take D and his friend out during the July and October school holidays, however Ms D did not take him up on the offer.

On 13 October 2011, Ms D received an email from the YMCA in which she was advised that a staff member had been stood down following allegations of inappropriate behaviour towards more than one child and that there was a police investigation taking place. When she attended the centre that afternoon, the staff member who was aware that the offender had babysat D advised Ms D to speak with D. In the car, Ms D told D that a serious allegation had been made against the offender. She also said that it was very important that he tell her the truth and asked whether anything inappropriate had happened with the offender. D said "Yes" and that the offender had put his hands down his pants. He told his mother that he felt too embarrassed and ashamed to tell anyone.

The matter was reported to police that evening, and D took part in an interview with police on 20 October 2011, when he made a recorded statement.

Count 4: Aggravated indecent assault, person under sixteen - s 61M(2)

D told the police that the offender:

"he was my best friend...he was a fun guy...we used to play with him...we needed help, he'd help us, if someone fell over he'd rush straight there...he would be the first one there."

"I used to be able to trust him and now I can't so, but we were really good friends so it's kind of hard to turn my back on him."

He told police that the reason he could not trust the offender was because of "things he's done...he's put his hand in places he should never have put them, down my pants."

The incident occurred in May 2011, when the offender babysat D. He collected D from the YMCA after school care and they returned to D's house as arranged with Ms D. After playing and eating dinner, they sat on the lounge together to watch a movie on the television. The offender lay along the lounge and D lay alongside, partially on the offender's lap. The offender had his arms around D while they watched the movie. The offender slipped his hands down D's pants and underwear and began to touch his penis. The conduct lasted for about a minute. During that time, the offender said to D, "Does that feel nice?" And D said, "Yes." This was the only time that the offender touched D in that way.

Victim 5: E

E's family moved in next door to the offender in January 2010. Approximately four months after they moved in, E's family were entertaining friends at their home. The children were swimming in the river behind the house. A number of the children made it out to a sandbar, however they were having difficulties returning to shore as the tide had come in. The offender approached E's mother and said that the children were in trouble and offered to rescue them. He paddled out with his ski and assisted the children to a safe wharf area. E told the police that it is when this incident happened "that I started to like him and started to thank him for doing that...we were sort of getting dragged down the river...that was when I started to get to know him." Over the coming year the offender would come over to the E's house and play with the children. E would also go and play with the offender at his house. The offender would sometimes send text messages to E asking if he wanted to come over and play Playstation. The offender's mother offered the offender's services as a babysitter, and E's parents were aware that the offender was employed as a childcare worker.

On 12 October 2011, following a conversation with a neighbour in relation to the police attending to speak to the offender, E's mother had a conversation with E about safe people and appropriate touching. E did not disclose anything to his mother. Several days later, E's parents spoke to E and his brother and advised them that the offender had been charged. E told his parents that the offender had not done anything to him. On 18 October 2011, as his mother was putting him to bed, E then disclosed that the offender had put his hand down his pants when he would go over and play on the Playstation. He also disclosed an incident with the offender in a boat shed. E's father went in to see him and saw that he had his head in his pillow and was crying. E kept asking his father if he was in any trouble and whether the offender would get into any more trouble than he was already in. He appeared very upset. The allegations were reported to police that night.

E took part in an interview with police on 21 October 2011 in which he made a recorded statement. He told police that there were a number of occasions on which something had happened.

Form 1 (attached to Count 5): (i) Act of indecency towards person under 16, in circumstances of aggravation, under authority - s 61O(1)

Around July 2010, the offender and E were fishing together on the wharf attached to the offender's property. At the time E was ten years old. After about an hour it started to get cold, and they went inside the nearby boat shed where the offender made them hot chocolate. They drank the hot chocolate sitting on a mattress.

When they had finished, the offender asked E if he could see his privates and pulled down E's tracksuit and underpants to see. E was lying on the mattress at this time. The offender then asked if he could lick it, E's penis. And E said, "No, that's disgusting." The offender then said, "Could I look at it closer then?", and he bent his face towards E's penis. E then left the boat shed and went back to the house.

Count 5: Aggravated indecent assault, person under sixteen - s 61M(2)

On a day during the January 2011 summer holidays, before Australia Day, E was at the offender's house in a downstairs playroom. Upstairs were some members of the offender's family. The offender and E were playing Playstation together. At the time E was ten years old.

The offender and E sat together on the lounge. It was a cold day, and the offender put out the fire and placed a blanket over the top of them. As they started to play, the offender put his hand down the front of E's pants and underwear and started to feel E's penis. E told the offender to stop, and the offender asked "Don't you like it?" E said, "No, it feels disgusting." The offender continued to touch E's penis until the game finished, when E said he was going home. When E got home, his parents noticed he had a red face and asked what had happened. E said, "Nothing." E's parents both recalled a time when E returned home with a red face and he told them that he had been under a blanket with the offender.

Form 1 (attached to Count 5): (ii) Aggravated indecent assault, person under sixteen - s 61M(2)

On a Saturday in June or July 2011, E was again playing at the offender's house. The offender had sent E a text message inviting him to play Playstation with him. E was eleven years old at this time.

E was initially sitting on a triangle chair, however he became uncomfortable and sat on the lounge with the offender. While they played the game together, the offender pulled E back towards him and put his hand down E's pants and underpants and touched his penis. He then rubbed E's penis, stopping when they finished playing. E asked the offender if he could play on the computer and the offender said, "Not unless you let me go into the bedroom with you." E said that he would not, and the offender let E use the computer. At the time E thought that the offender's sister and her boyfriend were probably upstairs in the house.

Victim 6: F

Around the end of 2002, F's family joined the Christian City Church in Miranda, where they met the offender. F's mother described the offender as a trusted family friend who would regularly visit their house. During 2007 to 2009, the offender would spend most weekends with F's family, joining in family activities. On most of these occasions, he would stay over on Saturday night and attend church with the family on Sunday. The offender would often be left alone with F and his siblings. When the offender stayed over he would sleep in a rumpus room with the children, and sometimes F's father would join them.

Around 14 October 2011, Mrs F became aware that the offender had been charged in relation to two children at his work. She contacted the offender's solicitor to offer support. Later, after receiving information that the offender's natural father had contacted F's father, she spoke to her three children separately. She asked whether the offender had ever touched them on the "doodle" (the word they used for penis), ever looked at their doodles or showed them his doodle. F had tears running down his face, and said, "He used to." When asked what he had done he said, "What you said." He became more upset and was crying. Mrs F asked F which of the houses they had lived in, when it had occurred, and he said "yes" to xxxx Street. She asked whether he did it one time, and F said, "No, two times," and he said, "No, three times", and again he said "No". She asked whether it happened lots of times, and F said "Yes". He was crying uncontrollably and grasping for breath. Mrs F cuddled and comforted F and told him he was a good boy for telling her.

Shortly after, police were notified by F's parents. F took part in an interview with police in which he made a recorded statement. He told police that he had met the offender through church, and that he was nice. He said that the conduct stopped about two years ago, and the last time it had happened was when he lived at xxxx Street. (His family moved out around June 2009.) Before then, the offender had touched him on the penis a few more times, starting some time the year before, when he was seven, the conduct happening for about a year. He could not recall the first time that it occurred.

Count 6: Aggravated indecent assault, person under sixteen - s 61M(2)

In 2009, prior to F's family moving out of their xxxx Street address in June 2009, the offender was visiting. F was eight at the time.

F was sitting on the floor in the lounge room on his own watching television. His parents were in another part of the house. The offender came into the room and got down on the floor with F. The offender put his hand under F's pants and underpants and rubbed F's penis. This was the last occasion that the offender touched his penis.

SECOND ARREST

On 24 October 2011, the offender was arrested upon his attendance at Miranda Police Station and charged in relation to the offences disclosed by C, D, E and F. He was refused bail.

THIRD GROUP OF VICTIMS

Victim 7: G

Since starting school in 2008, G attended before and after school care run by the YMCA, in recent times moving to only after school care. Over the years, G's mother got to know the various staff who worked at the centre, including the offender. She observed that the offender appeared fond of G, which made her proud of G and at ease with his after school care.

On 14 October 2011 Mrs G became aware of an incident involving the offender in the course of his duties at the YMCA. On 21 October 2011, she spoke to her children and told them that the offender would not be coming back to after school care as he was in serious trouble. She asked whether the offender had ever touched them on the penis. G began to cry, and said, "Yes, he has", and said that he did not want to get into trouble. When asked whether it had happened once, he said, "No, it happened a number of times." The matter was reported to police.

On 26 October 2011, G took part in an interview with police in which he made a recorded statement. He told police about two occasions when the offender had touched him on the penis. When asked whether there were other times that it happened, G disclosed that there had been other occasions, the first being near Christmas.

Count 7: Aggravated indecent assault, person under sixteen - s 61M(2)

On 16 September 2011, a movie night was scheduled at the after school care to celebrate the start of the school holidays. That afternoon, G and some of the other children were helping the carers set up for the movie night.

G approached the offender, who was standing behind the movie screen, and asked for a drink. The offender said yes, and G started to move away. The offender then said to him to "come back", which he did, facing away from the offender. The offender then began to hug G from behind, then put his hand down G's pants and underpants and touched G's penis "playing with it", according to G. The offender asked whether G was comfortable, and G replied, "Get lost, stop doing it", and then he walked away. G was nine years old at the time.

Form 1 (attached to Count 7): Aggravated indecent assault, person under sixteen - s 61M(2)

On 23 September 2011, G was at his after school care. A number of the children, including G, were watching a movie in a quiet corner and eating popcorn. The offender said to G, "Do you want to sit on my lap?", and G said, "All right." The offender sat on the lounge, and G sat on his lap. While the movie was playing, the offender put his hand down G's pants and underpants and touched G's penis. With his hand, he rubbed and "played" with G's penis. After about ten or twenty seconds, G said, "Get off." The offender kept touching, and G got up and left.

Victim 8: H

Mrs H and Ms C were friends, and through their friendship, Mrs H got to know the offender. She was also aware of his work with the YMCA, as he would collect children from her dance class as part of his carer's duties. Mrs H had also previously worked with the offender's mother. H and C were close friends since meeting in kindergarten.

In October 2011, Ms C advised Mrs H that C had been touched by the offender, and that the police were investigating. She said she had concerns about H. Later that day, Mrs H asked H whether the offender had ever touched him anywhere he should not be touching. H said, "Yes.", and when asked where, said, "Mum, that's private." In response to further questions, he confirmed that he had been touched once in the area of his penis while his pants were on. When his father later tried to talk with H about what happened, he said, "Dad, it's a bit embarrassing, I don't want to talk about it."

The matter was reported to police, and on 27 October 2011, H took part in an interview in which he made a recorded statement.

Count 8: Aggravated indecent assault, person under sixteen - s 61M(2)

Around 11.15am on 3 September 2011, Mrs H attended a hapkido class to collect her children. The offender was present when she arrived. H, who was eight at the time, asked whether he could go back to C's house with the offender and C to play. Mrs H was aware that the offender regularly babysat C, and after speaking with him, agreed that H could go. After collecting the two boys from hapkido, the offender drove them back to C's house where they all played Playstation for a while. The offender then drove them to Coles to get something to eat, and they returned to the house and ate lunch. After lunch, they resumed playing Playstation. While C took his turn, H sat on the offender's lap. The offender then touched H's penis on the outside of his clothes, with his hand moving up and down for the duration of the game. Around 2.05pm, the offender sent Mrs H a text message to supply a contact number and advise that all was okay.

ADDITIONAL CHARGES LAID

On 31 October 2011, additional charges were laid in relation to the offences concerning G and H.

OFFENDER'S ADMISSIONS TO POLICE

On 25 November 2011, investigating police attended the Metropolitan Remand and Reception Centre at the request of the offender. In the presence of his solicitor, the offender took part in an interview with police. During the electronically recorded interview, the offender made admissions in relation to the charges already laid. The charges in relation to the eight complainants already referred to were read out to the offender during the interview, and he admitted that he had committed the offences charged.

Furthermore, during the course of the interview, the defendant provided police with a handwritten document in which he volunteered that he abused four further children previously unknown to police. He made further admissions in the interview in respect of these children.

The offender was asked whether he was aware that his actions around the boys were wrong, and he agreed. He was asked whether he was aware it was inappropriate, and he said, "Yeah, I understand that."

He acknowledged that his behaviour was inappropriate, and made the following comments in the interview:

"I mean, I haven't stopped thinking about everything...for a few weeks now. I just want them to be able to deal with it now and not get to the point where they're in my situation down the track."

"Basically, now that I'm sitting in this position, in gaol, I want to give myself a new start. I want to deal with this, pay the consequences, hopefully get some sort of assistance through psychiatrists, get my head better and then, basically, start again. I don't want to have to think about this any more. I just want to move on and start fresh."

The offender was asked whether there was anything that he wanted to say in general to all of the victims that have been involved. He replied:

"There's not a day that goes by that I don't hate myself doing things that I did. I don't think I've stopped praying since I got here, not for sympathy, not for my own self, but for the boys, their families, their friends, their whole life now that I've made an impact on it. I just pray...they can get the help they need, their families can get the help they need too, they can move on and, hopefully, live a better life. I just have not stopped thinking about all the people that I've hurt and their families, and I really hope that the people that I've told you about... that they do come forward...so they can deal with it however they need to deal with, get the help that they need, as well as their families, just move forward and, hopefully, their slate can be wiped clean of it."

FOURTH GROUP OF VICTIMS

Following the admissions made to police, the children the offender nominated in the interview were interviewed, with the exception of BB.

Victim 9: BB

BB is the younger brother of victim 2, B. Like B, he also attended after-school care run by the YMCA at Caringbah Primary School. In the handwritten statement provided by the offender during the interview, the offender stated that he would touch B and BB on their privates when no-one was looking. He said that B had come forward, but that the same thing had happened with BB, his brother. In the course of the interview, the offender provided specific details about what had taken place.

Count 9: Aggravated indecent assault, person under 16-s61M(2)

The first time the offender touched BB was sometime during the 2011 school term (between 1 February 2011 and 13 October 2011). The offender would sit with BB at after-school care, and they would draw cartoon characters together. On this occasion, BB sat on the offender's lap, and the offender put his hands on BB's penis on the outside of his clothes and rubbed BB's penis. BB would have been eight or nine years old at the time.

Form 1(attached to Count 9): Aggravated indecent assault person under 16-s61M(2)

In the same period, namely, during the 2011 school term, the offender sat with BB drawing together. The offender put his hand on BB's penis, on the outside of his clothes, and rubbed it.

Victim 10: J

From July 2009, J attended vacation care at Caringbah YMCA. He would attend at least two or three days at a time during the school holidays.

In October 2011, J's mother heard a report regarding a person involved at the YMCA being charged with offences against young people in care. She asked J whether anyone had done anything inappropriate such as touching him, or anyone had hurt him in anyway. J said that no-one had, and over the following weeks, Mrs J heard further news reports, and on a number of occasions asked J similar questions. Each time he said nothing had happened.

On 29 November 2011, investigating police attended Mrs J's home and spoke with her and her husband regarding J. After they left, Mrs J went to J and explained who the police were. She told him they were there about what had happened at vacation care, and that they had told her that things had happened to J as well.

J did not say anything, although he appeared to be embarrassed. Mrs J told him that he would need to see the police. Later that night, J asked what the police would want to know, and Mrs J told him they would want to know what happened, and where it happened. J asked if he could write it down and she replied yes. J later placed a sealed envelope on the kitchen table addressed "To the police only".

On 1 December 2011, J took part in an interview with police, in which he made a recorded statement. During the course of the interview, he elaborated on the incidents described in his letter to the police. He told police that incidents involving the offender started in the January 2011 holidays.

INCIDENT ON THE BUS (DURING VACATION CARE FEBRUARY-OCTOBER 2011)

J went on an excursion to a farm. On the way back from the farm, the offender was sitting next to him on the bus. On the other side of the offender was J's sister. J was eight years old at the time

Form 1 (attached to Count 10): (i) Aggravated indecent assault, person under 16-s61M(2)

During the course of the bus trip, the offender put his hand underneath J's pants and underpants and rubbed J's penis.

The offender volunteered this conduct in his ERISP with police, prior to J's interview.

Form 1 (attached to Count 10): (ii) Incite act of indecency person under 10-s61O(2)

The offender also disclosed to police that during this incident he encouraged J to touch his penis.

Count 10: Sexual intercourse child under 10 in circumstances of aggravation (under authority) - s66A(2)

While still on the bus, the offender placed J's penis into his mouth and sucked his penis. J asked him, "Please stop now," and the offender stopped.

In his interview with the police, the offender volunteered that he had sucked on J's penis while no one was looking. He stated that he asked if he could kiss J's "privates".

Form 1 (attached to Count 10): (iii) Incite act of indecency person under 10 - s61O(2) Crimes Act

The offender volunteered to police that he encouraged J to kiss his penis and to lick it a little bit. He further disclosed that he told J it was a secret.

THE STOREROOM INCIDENT

In his interview, the offender volunteered further information about an incident in the storeroom at vacation care. J was asked about this in his interview with police.

Count 11. Sexual intercourse child under 10 in circumstances of aggravation (under authority) - s66A(2)

J stated that there was a time (between January and October 2011) when he and the offender went to get sports equipment, and the offender kissed him on the lips. J was eight years old at the time.

In the interview, the offender volunteered that he went to the storeroom with J, away from everybody else. Once there, he kissed J and then placed his mouth over J's penis and sucked his penis for a few seconds.

J could recall that the offender had sucked his penis on two occasions, however he was unclear as to the details of the second occasion, but was of the belief it was on a bus.

THE MOVIES

The offender made admissions to police in his interview regarding an incident that took place while on an excursion to the movies. J was asked in his interview whether he could recall something happening at the movies, and he said that he did not remember being in the movie cinemas. The following account was volunteered by the offender.

Form 1 (attached to Count 11): (i) Aggravated indecent assault person under 16 - s61M(2)

At the time, the offender and J were sitting in the back row of the cinema. The offender admitted that he asked to touch J's penis, and J allowed him to do so.

Form 1 (attached to Count 11): (ii) Incite person under 10 to commit an act of indecency - s61O(2)

The offender volunteered to police that in the course of this conduct, he allowed J to put his hands down his pants and rub his (the offender's) penis.

Form 1 (attached to Count 11): (iii) Aggravated indecent assault person under 16 - s61M(2)

Finally, the offender admitted that he kissed J, and kissed J's penis.

THE ROCK-CLIMBING EXCURSION

On 11 July 2011, J and other children went on an excursion, rock-climbing. J was eight years old at the time.

Form 1 (attached to Count 11): (iv) Incite person under 10 to commit act of indecency - s61O(2)

J recalled an incident on a rock-climbing excursion, when the offender asked him whether he had seen his friend's "rude part". He was asked in the interview whether he could recall the offender daring he and his friend, L, to show each other their "privates", and said that he thought that had occurred in the toilets, on the rock-climbing excursion. He could not recall what had happened after that.

In his interview with police, the offender admitted to sitting in the minibus with J and another boy, L, and that he dared them both to show each of their privates, which they did. The other child, L, was able to describe the incident to police in his interview, which will be shortly referred to.

Victim 11: K

K attended before-school care at the Caringbah YMCA once a week. At the centre, he would play with the offender, who he described as "really nice". On 30 November 2011, he was interviewed by police, when he made a recorded statement.

Count 12. Aggravated indecent assault person under 10 - s61M(2)

In his interview with police, K was asked whether the offender had ever touched him on his "willy", and K said that he had, last term (July-September 2011).

At the time, K was six years old. K was at the back of the centre on the lounge. He said that he was sitting on the offender's lap, and the offender was having fun with him, lifting him up. He said that the offender touched him on the "willy", on the outside of his pants, and "just a little bit".

The offender admitted to police in his interview that while he was playing Playstation with K, he put his hand on K's penis.

K was asked whether there was another time the offender touched him, and he said he could not remember another time.

Form 1 (attached to Count 12): Aggravated indecent assault person under 10 - s61M(2)

In his ERISP, the offender volunteered that in the second term of 2011, April to July 2011, while acting as K's carer, he put his hand on K's penis and rubbed it. K was six years old.

Victim 12: L

L and his younger brother both attended Caringbah vacation care centre, run by the YMCA, in the July and September 2011 school holidays. During the July school holidays, L asked his mother whether the offender could come and baby-sit him. He would often talk about the offender to his mother, and about how nice he was.

On 29 November 2011, investigating police visited L's mother, and after having a conversation with her, arrangements were made for L to be interviewed.

Prior to the interview, on 8 December 2011, L's mother asked L whether there was anything he would like to tell her about the offender. L said that the offender touched him while on the bus on a rock-climbing excursion, and the offender got him to pull down his pants while he was with another boy.

On 9 December 2011, L was interviewed by police and made a recorded statement.

Count 13: Aggravated indecent assault, person under 16 - s61M(2)

On 11 July 2011, L attended a rock-climbing excursion as part of his vacation care. He was eight years old.

During the bus trip, L was sitting with the offender, who was driving. While he sat next to the offender, the offender, with one hand, put his hand up L's shorts, lifted up his underpants and touched L's penis. His hand was moving around, touching the penis. The offender asked L if he liked it, and L replied no. It lasted for about a couple of minutes.

In his interview, the offender admitted that he put his hands on L's penis and that he rubbed it.

Form 1 (attached to Count 13): Incite person under 10 to commit act of indecency - s61O(2)

While on the same trip, the offender encouraged L and J to pull their pants down and show each other their privates. L did not want to do this, however the offender kept insisting saying, "Come on, L, do it." L pulled his pants down a little bit, then pulled them back up again. J also pulled his pants down. Neither boy pulled his underwear down.

The offender volunteered to police in his ERISP that he dared L and J to play the dare game, and that he requested they exposed themselves to each other, which they did. He also volunteered that he dared them to kiss each other, however, they did not do that.

L's mother recalled that when L returned from the rock-climbing excursion, he told her that he was good at rock-climbing that day, and that he and his friend had received an extra treat from McDonalds from the offender.

FINAL CHARGES

The offender was charged in relation to the conduct committed against the complainants BB, J, K, and L.

It is necessary to note in respect of the facts that while the counts before the Court for sentence occurred over a period between 1 January 2009 and 13 October 2011, the facts in respect of other offences, including uncharged offences, indicate the commencement of sexual abuse of children at least no later than 2008.

It is relevant to note in respect of the uncharged acts that they are before the Court in respect of the individual victims, to indicate that the counts that have been charged in respect of which he is to be sentenced and those contained on a Form 1 in respect of those victims are not isolated incidents in respect of that victim. However, the Court can only sentence the offender for those counts for which he is charged, also taking into account, if appropriate, any attached Form 1, and cannot sentence the offender in respect of uncharged acts.

It is abundantly obvious from the overall facts that the offender has committed a significant number of offences over a significant period of time, which alone would indicate that his conduct of this nature is not "isolated" simply to the counts for which he is to be sentenced and those that are contained on a Form 1.

As already indicated, no additional penalty or consideration of increased penalty can be given in respect of uncharged acts. It simply puts those acts which have been charged in perspective as not being isolated events.

While there are individual differences in relation to the s61M(2) counts, there is an overall similarity of conduct.

The offences involve, in general, the offender rubbing or touching the victim's penis, either directly or through clothing.

There is also a significant similarity in relation to the age grouping of the victims. While the circumstance of aggravation referred to in Counts 1 to 9, 12 and 13 is that the victims were under 16 at the time, A, C, F, H and J were each aged eight years. B, D, G and BB were nine years. E was 10 years. Each of those ages is substantially less than the maximum age of 16, which applies in relation to offences under this section.

In respect of K, he was six years of age at the time.

While the offender's choice of victim in those matters tends in the main to be in relation to children between the ages of eight and 10, and that factor must be taken into account as being more significant than a child closer to the age of 16, it is of even greater significance that one of the children, K, was six years of age at the time.

In respect of Counts 1 to 9, 12 and 13, the offender was also in breach of the trust placed in him either as a result of the position of trust because of his employment, or because he had been permitted by the parents of the individual victims to babysit them, or because of the parents' knowledge of his employment and relationship to the church, he had been trusted to be alone with their children.

In respect of D, the offender committed the offence in the home of the victim, as he also did in respect of C and F.

In terms of acts of indecency potentially covered by s 61M(2), the touching or rubbing of the child's penis is a serious form of the offence, although no doubt both more serious and less serious forms can be imagined. Each of the eleven offences for which the offender is to be sentenced pursuant to s 61M(2) must, in the Court's view, be regarded as significant and serious. As already referred to, in some cases, there are aggravating circumstances, involving a breach of trust or of the offence, occurring in the home of the victim.

The relevant circumstances in respect of each individual offence as referred to in the facts must be taken into account by the Court in determining an appropriate sentence for the individual offence.

In respect of the offences contrary to 61M(2), the seriousness with which the community regards them can be seen from the fact that the maximum sentence provided is one of ten years imprisonment, and that a standard non-parole period of eight years is also provided.

In respect of the two offences contrary to s 66A(2) of the Crimes Act, being Counts 10 and 11, and each relating to the victim J, the seriousness of such offences is clearly indicated by the fact that the legislation provides for a maximum term of imprisonment for life, and also provides for a significant standard non-parole period of 15 years. Because the charge relates only to offences where the child is under ten, the age of the victim J is already taken into account by that element of the offence. It is therefore not an aggravating feature under s 21A of the Crimes (Sentencing Procedure) Act. I note, however, that the age of J is still relevant when assessing the criminality involved in the offences that are the subject of each of the two Form 1 offences which attach respectively to Count 10 and Count 11 in respect of J.

Section 66A(2), also as an element, takes account of the fact that J in respect of Counts 10 and 11 was at the time under the authority of the offender. Accordingly, that J was under authority is not a further aggravating circumstance, as it is already taken into account by the charge. However, again I note that in respect of the further offences contained on the respective Form 1's relating to J and Counts 10 and 11, the breach of trust in respect of those offences is a relevant factor that the Court must take into account.

In respect of all of the offences before the Court for sentence, or before the Court to be taken into account by way of a Form 1, it is of note that with the exception of the offences relating to J, there is no suggestion that the offender at any time exposed his own genitals or was observed by any of the victims to be manipulating his penis or to be physically aroused by way of erection. There can be little doubt that the offender engaged in the activity - considering its extensive nature and period - as a result of deriving some sexual gratification from indulging himself in the conduct, but on the facts, it would appear to be without any physical sign.

It was in respect of J that the offender sought to have J kiss or lick his penis - that is, the offender's penis - or that the offender licked or kissed the victim's penis. Even in those circumstances, there is no evidence before the Court that in the circumstances of the conduct the offender became erect, or that the conduct resulted in the offender reaching ejaculation.

In respect of J and the offences contrary to s 66A(2), sexual intercourse is defined by s 61H(1) of the Crimes Act. Such conduct in relation to a male victim includes fellatio of the victim, or the victim performing fellatio on the offender. Sexual intercourse is otherwise defined to include, in respect of males, penile or digital penetration of the anus as well as the penetration of the anus by any object.

The Crimes Act makes no distinction as to any of the defined acts of sexual intercourse as being more or less serious than any other act contained within the definition. In R v Hibberd [2009] NSWCCA 20, Tobias JA at [20-21] said that there could be no prima facie assumption or general proposition that any one form of sexual intercourse is less or more serious than any other form.

Also in Hibberd, Price J at [55] referring to Ibbs (1987) 163 CLR 447; R v Allpass (1994) 72 A Crim R 561, said:

"The heinousness of the offending conduct depends on the facts of the case and not on the statute defining the offence."

In considering the various forms of sexual intercourse as defined by s 61H in the circumstances of the offences committed in respect of J, the Court is prepared to find that the acts of fellatio are a less serious form of offence than would have been the case if the victim had been anally penetrated in any way, while also noting that, to the victim, being required to lick or kiss the penis of the offender is more likely to have, in the Court's view, a more substantially adverse effect than the offender kissing or licking the victim's penis. Each of Counts 10 and 11 in respect of J, however, involves serious sexual misconduct by the offender towards the victim.

In respect of the twelve victims, the Court has been provided with six Victim Impact Statements. One of those consists of a drawing done by A, to which is attached an explanatory letter dated 10 October 2012, from a social worker, Ms Baxter, an employee of the Sydney Children's Hospital, explaining the drawing as explained to her by A. In addition, there are a further five Victim Impact Statements in respect of Victim 3, C, Victim 10, J and Victim 11, K. Each of the Victim Impact Statements was read to the Court by the mother of the victim. In respect of Victim 6, F, and Victim 8, H, the Victim Impact Statement was read to the Court by the father of the victim.

The Victim Impact Statements are eloquent testimony as to the significant adverse effects that the commission of sexual offences against young children have not only on the children but on their families. I have this morning deliberately reread the Victim Impact Statements to ensure that, as the evidence was given some time ago, they are at the forefront of my mind, and I will take the Victim Impact Statements into account when sentencing for the individual offences against victims where there is a Victim Impact Statement.

I note, however, that despite serious consequences for the children and the parents as outlined in those matters, there is nothing contained which takes the impact on the victims and the family beyond what could ordinarily be expected to arise from such serious offences of sexual abuse against children.

The Court is also aware, even in respect of matters where no Victim Impact Statement has been provided to the Court, that the adverse effects on children of offences of this nature are highly likely to impact adversely on their psychology and personality and indeed their social relationships for many years into the future, if not for the balance of their lives. The serious impact on children of offences of this nature cannot be underestimated. However, again, I note that as I have said, there is nothing before the Court which takes the impact in respect of any particular victim beyond what might ordinarily be expected to arise.

There is no Pre-Sentence Report before the Court, nor has any psychological or psychiatric report been tendered on behalf of the offender.

The material before the Court in respect of the offender comes from oral evidence from his father, that is his natural father, Roger Lord, as well as from a number of affidavits and/or references, being part of Exhibit 2. They consist of an affidavit from his mother; an affidavit from his natural father who, as I said, did give evidence; an affidavit from the offender's stepfather, Charlie Yankos; an affidavit from the offender's older full brother, Bradley Lord; a reference from Danielle Beaufils, an older half sister of the offender; a reference from Lorraine Dunn, an aunt of the offender; a letter from the Reverend Thomas W Schmidt, a senior minister of the Baptist church in Cronulla and a person who over a period of 12 months prior to the date of his reference had visited the offender in custody on eight occasions, and who indicates that the offender expressed to him his contrition and remorse and concern for the victims and their families, which the Reverend accepted as genuine; a reference from John Knowles, a past employer of the offender and friend of the family; two pages of the Mental Health Transfer Discharge Summary relating to the offender being admitted at the Sutherland Hospital on 17 October 2011 with suicidal ideation, and his discharge on 24 October 2011; certificates indicating that while in custody the offender has completed a Salvation Army course referred to as "The Positive Lifestyle Program", and that he had completed Certificate I in "Information Technology" and Certificate II in "Visual Arts and Contemporary Craft". While the date of the certificates for some of those courses has not been recorded, it is reasonable to anticipate that he has in fact now completed them. In addition, there is a self-referral form which indicates that the offender has twice communicated to the prison authorities that he would like to participate when able to in the CUBIT course, a course specifically designed to treat sexual offenders. Lastly, there is a letter to the Court from the offender expressing his remorse and contrition, his acceptance of responsibility for his behaviour, and his apology to the victims and their families for his conduct and the impact he has had on them, as well as his willingness to attend and complete any appropriate programs that might assist him in rehabilitation and reform.

Such letters to the Court can generally carry little weight in the absence of the offender giving evidence and the Court being able to judge for itself from the offender's oral evidence the genuineness of any claims made in a written document. In this matter, the offender did not give evidence on sentence. I will refer to that again later.

What can be discerned from the material before the Court is that at the time of the first offending conduct in respect of which there is a charge that the offender must be sentenced for (Count 6), the offender was aged 22, that is, in 2009. The remaining twelve counts for which he is to be sentenced took place when he was about 24. He is now 26 years of age.

He has, an older brother and a younger sister to his natural father. He has two stepsisters, both younger than him. According to his mother, as a child, he was always "a bit of a loner" who, while he did not excel in sports, did participate in lots of sports. In high school, he joined a band, and he continued to play in his senior years of high school, as well as later playing in a couple of local bands as well as a church band. His parents, Jill and Roger Lord, separated when he was ten years of age. His mother describes him as being a hard worker who delivered the local paper at the age of twelve, that he later, when old enough, obtained a job at the Coles checkouts and worked there during high school, as well as joining a local Pentecostal church and being involved in the associated youth group while at high school. He apparently drifted between a number of different Pentecostal churches over the years.

According to his mother, he has had few close friendships. He completed his HSC but was never certain of what he wished to do when he left school. At first he commenced a music course at TAFE but dropped out during the first year. He then worked at installing electronic sliding doors, but after a period of six months he lost that job. He went on to commence employment in printing with Mr Knowles and started a traineeship, but he only lasted for approximately a year before losing interest and deciding it was not a career he wished to follow. He then tried his hand as an electrician, in respect of which he apparently lasted approximately 12 months. He took on some responsibility by buying a unit with his brother and was working a second job delivering pizzas, as well as continuing to attend church, group meetings, and band practice. In 2008 he quit his job, and a friend from church arranged for him to obtain work with the YMCA after school care program. He also did some casual work repairing waterfront jetties with an associate through the church. At the start of 2011, he commenced a design course while at the same time working in childcare.

His mother indicates that she and her family continue to provide ongoing support, visiting him while he has been in custody, and that he has expressed his remorse to her in respect of his conduct and his concern in relation to the victims and their families.

It is clear that the offender initially denied having committed any offences to his family. However, his stepfather, Charlie Yankos, indicates in his affidavit that he confronted his stepson about the allegations and that the offender, in effect, broke down and became very distraught. Later together with the offender's older brother, Brad, the offender was confronted by a demand to be told the truth, and he informed them that he had lied, and said that he was sick and needed help. At the time he apparently made reference to himself being molested at about five years of age on numerous occasions at a local surf lifesaving club. He expressed his shame and sorrow in respect of his conduct and the impact on the children and their families.

It appears from the information before the Court that it is at this time that the offender was taken by relatives to the Sutherland Hospital and admitted with suicidal ideation. He was released from hospital on 24 October 2011, when he was again arrested and charged with further offences. It would appear that after that time, while in custody, he was further persuaded by relatives that he needed to make a clean breast of all matters of misconduct, and as a result requested the police to attend and interview him, at which time he disclosed the offences which were not yet known to the police regarding BB, L, K, and J.

It appears that the offender had a stable and supportive family upbringing, and that the family, despite the commission of the offences, continues to regard him favourably and to be prepared to offer support in the future.

During the course of what I have just referred to, I have referred to his informing Mr Yankos that he had been molested for some period of time from about the age of 5 years. I note that there is no direct evidence of any such sexual abuse of the offender before the Court. References are made in other material that has been tendered to a similar effect.

In Dousha v R, 2008 NSWCCA 263, with Bell JA, Fullerton and Latham JJ agreeing, at [47], the court indicated that there must be direct evidence that any abuse suffered by an offender as a child had contributed to his offending as an adult, and that, in the absence of any evidence of any causal connection, it is irrelevant to the sentencing discretion.

The onus is on the offender to demonstrate on the balance that any abuse suffered by him, if accepted, contributed to his offending conduct thereby reducing his moral culpability as indicated in Henry 2009 NSWCCA 69.

There is no evidence in this matter that any alleged misconduct of a sexual nature against the offender as a child, if it occurred, has any causal relationship to his offending conduct in these matters.

The Court accepts that the offender has expressed remorse and contrition to those persons who have referred to it in the material tendered on his behalf.

While the Court would normally be very circumspect in respect of assertions of remorse and contrition in the absence of evidence from the offender, and where the only evidence of remorse from the offender is contained in a letter to the Court, the Court is prepared to accept that the offender has demonstrated genuine remorse and contrition. Although he did not initially admit any offences to the authorities, it is significant that he subsequently not only admitted all of the offences with which he had been charged, but also disclosed a significant number of additional victims and offences, when they were unknown.

It may well be that while in custody the offender formed the view that additional victims or offences may be likely to emerge in the future, but he should be given the benefit of the doubt on that, and I accept that he accepted the advice provided to him by his relatives and his solicitor that he should adopt a course of full disclosure, and in those circumstances, the Court is prepared to accept that he is indeed remorseful and contrite, as well as being concerned for the impact that his conduct has had and will continue to have on the victims and their families. His pleas have relieved the victims of the stress of having to give evidence in a defended matter.

The offender's criminal history is before the Court. He has never been previously convicted of any criminal offence of any sort and, in that sense, was a person of good character.

However, s21A (5)(A) of the Crimes (Sentencing Procedure) Act provides in respect of cases of child sexual offences that in determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor, if the Court is satisfied that fact was of assistance to the offender in the commission of the offence.

The Crown has submitted that it was the offender's lack of antecedents and previous good character that allowed him to obtain employment as a child care worker and babysitter, from which positions he committed the offences and that, in those circumstances, his previous good character and lack of criminal offending should not be taken into account as a mitigating factor.

Also of note in respect of whether his previous character should be permitted as a mitigating factor is the number of victims and the period of time over which these offences occurred, and the significant number of offences which, between those charged and those on a Form 1, total 29 offences.

In those circumstances, the Court accepts that it would be inappropriate for the Court to take into account his good character or lack of previous convictions as it accepts that they were a significant factor in his obtaining work in child care with the YMCA, largely from which not only did the offences occur in respect of clients of that service, but he established a general reputation as being an appropriate person to engage in babysitting or child care.

I have already referred to the matters that the offender voluntarily disclosed. The principles of sentencing in respect of voluntary disclosure are that where a conviction follows upon a plea of guilty that results from a voluntary disclosure, the Court should provide a further element of leniency.

I cannot find that it was likely that his guilt would be discovered in relation to the additional matters, and I am prepared to give him the benefit of the doubt on that and, as a result, accept that a significant element of leniency should be extended to him in respect of the offences he voluntarily disclosed.

In determining appropriate sentences in respect of these matters, the Court must have regard to whether, as a mitigating circumstance, there is a good prospect of rehabilitation, and whether it can be said that he is unlikely to re-offend.

Mr Smith, of counsel, who appeared for the offender, conceded that it would be difficult for the Court to find that there was a good prospect of rehabilitation and that he was unlikely to re-offend, because of the nature of the offences and the period over which they occurred, and the number of individual offences.

His submission was, essentially, that the Court would not be satisfied in that regard, but would find that if there was ever an offender in relation to sexual offences who might possibly turn around, it was likely to be this offender, because of his current age of 26, because of his genuine remorse and contrition, and because of his voluntary admissions of further misconduct and the support of his family network.

The offender's conduct overall demonstrates that he can reasonably be regarded as a predatory paedophile who is obsessed with obtaining sexual gratification from prepubescent males.

While the individual offences may, if considered separately, be seen as opportunistic offences, the Court is of the view that the offender deliberately obtained work with the YMCA, or at least having obtained work, thereafter continued with such employment because of the realisation of the opportunities that it would provide to him to engage his perverse sexual inclination to offend against prepubescent males. In that sense, the offences were essentially premeditated, although they only occurred when the specific circumstances provided the opportunity to indulge.

The Court is also of the view that, considering the offences overall, that having succeeded in not being discovered in relation to a significant number of offences, the offender's indulgence in offences of this nature was becoming increasingly more serious, as indicated by the later offences involving J, and also as a result of his endeavouring to engage more than one child at a time. Fortunately for the community, his offending conduct was discovered and disclosed to the authorities.

Sexual inclinations or orientations such as the offender's are generally difficult to treat. As I have indicated, there is no Pre-Sentence Report, psychological report or psychiatric report before the Court that could assist the Court in making a determination that there is a good prospect of rehabilitation, or that there is a low risk of re-offending. However, in light of having accepted that the offender is genuinely remorseful and contrite in respect of his conduct, the Court is prepared to accept that if he receives appropriate treatment while in prison and on subsequent release, and that he will spend a significant period of time in custody, will at least operate on him to the extent that there is at least a reasonable prospect that he will not re-offend, particularly taking into account the support of his family, and their knowledge of his conduct.

While the Court cannot say that there is a good prospect of rehabilitation, that is not to say that there is no prospect of rehabilitation. Again, with appropriate treatment, there is a reasonable prospect of rehabilitation even in the absence of the material that I have previously referred to.

Some reference has been made during submissions to the question of protection. I would accept from my knowledge of the prison system and of the attitudes of other prisoners that the offender, while in custody, is likely to become a protected prisoner either at his own request or simply as a result of a determination by Corrective Services as being appropriate. While Mr Smith referred to protection, I note there is no evidence before me as to what significance protective custody might have, and in any event in Clinton [2009] NSWCCA 276 it was stated:

"In any event, decisions about the significance of protective custody given before R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 should be read in the light of that decision and the different approach that was there taken to the relevance of the fact that a person was in protective custody. The change to the approach previously taken was as a result of information provided to the court that revealed that protection did not necessarily result in harsher prison conditions. The change in approach was continued in R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304, was approved in R v Way [2004] NSWCCA 131; 60 NSWLR 268 at [177] and has been applied to cases where assistance has been given to authorities: R v Sukkar [2006] NSWCCA 92."

Indeed, removal from the general prison population to protective custody may significantly decrease the amount of tension or stress for the individual prisoner. In any event, as I have previously indicated, no evidence has been placed before the Court that if the offender should go into protective custody - even though I find that likely - it would result in a harsher form of imprisonment for him. No doubt it would at least result in perhaps some time restrictions in terms of the time permitted out of cells.

For the purposes of sentencing, the Court must have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 and must take into account such of the aggravating factors and mitigating factors as referred to in s 21A(2) and (3) as are present and any other relevant factor. I have in these reasons on sentence already referred to the appropriate considerations. I note of course that in the instinctive synthesis of sentencing, the Court must have regard as a relevant factor the maximum sentence provided as well as the standard non-parole period. In sentencing an offender, the individual sentence must reflect the objective seriousness of the offence and ensure that any time the offender must spend in custody reflects all of the circumstances of the offence, including the objective seriousness, the need for general and specific deterrence, and meet the fundamental purpose of punishment, the protection of society. In this matter, the Court regards both general deterrence and specific deterrence as being important factors to take into account.

I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act that no penalty other than imprisonment is appropriate, and no submission has been made on behalf of the offender that any sentence other than imprisonment is appropriate.

The Court has first determined, by considering the individual offence, and its objective seriousness, taking into account the relevant factors as previously expressed, an appropriate sentence. The Court has done that in respect of each of the individual offences, also taking into account, where appropriate, any offences contained on a Form 1, the nature of those offences and the number of them. Having determined what the Court regards as appropriate sentences for the individual thirteen offences that the offender must be sentenced for, the Court has then given consideration, as required by Pearce v R [1998] 194 CLR 610 and, where appropriate, in relation to voluntarily disclosed offences, to what is referred to as an "Ellis discount", and as indicated at the outset of these reasons, that the offender is entitled to a 25% discount for the utility alone of the plea of guilty. Having established the individual sentences, the Court has given consideration to concurrence and accumulation, as well as to the principle of totality.

For the benefit of the legal representatives, I will indicate the order in which I propose to deliver the individual sentences and a number of other relevant matters before expressing the individual sentences. I will deal with the sentences in the order of Counts 1 to 9, followed by Counts 13, 12, 10 and 11. In respect of the commencement date, it will of course be the date on which the offender first went into custody in relation to these matters: 24 October 2011. In respect of each subsequently imposed sentence, whatever be the total sentence imposed, there will be accumulation by three months in respect of each of the following counts. To assist with your calculations and determination as to whether my calculations are correct, I will now indicate the overall outcome of the sentences, taking into account the accumulation.

The total sentence will be 10 years. The accumulated non-parole periods will total six years. Accordingly, when first eligible for parole, if released, the offender will be subject to parole for four years. I intend to find special circumstances, particularly in respect of the offender's age, and what the Court perceives as a need for a significant period of rehabilitation under supervision to assist him to rehabilitate, and not re-offend.

In respect of each of the thirteen counts before the Court for sentence, the offender is convicted. The sentences are as follows.

Count 1 - A - 61M(2), also taking into account a single offence contrary to the same section on a Form 1.

The sentence is four years, to date from 24 October 2011. Having found special circumstances which justifies the reduction of the non-parole period from the statutory relationship, the non-parole period is two years and, having commenced on 24 October 2011, the non-parole period expires on 23 October 2013. The balance is two years, commencing on 24 October 2013 and expiring on 23 October 2015. Accordingly, if that was the only offence that the offender was faced with, he would be eligible for parole on 23 October 2013. However, because of sentences yet to be imposed, he will not be in fact able to be released at that time.

Count 2 - B - s 61M(2), also taking into account a single offence contrary to the same section on a Form 1.

The sentence imposed is a total term of imprisonment of four years. Again, special circumstances apply. The non-parole period is two years, commencing three months after the last imposed sentence. It will commence on 24 January 2012 and expire on 23 January 2014, when the offender, in the absence of serving any other sentence, would be eligible for parole. The balance of term is two years, commencing on 24 January 2014 and expiring on 23 January 2016.

Count 3 - C - s 61M(2), also taking into account a single offence contrary to the same section contained on a Form 1.

The term of the sentence is four years. Again, having found special circumstances, there is a non-parole period of two years, commencing three months after the last imposed term of imprisonment. It will commence on 24 April 2012 and expire on 23 April 2014, when, absent any other sentence, he would be eligible for release on parole. The balance of term is two years, commencing on 24 April 2014 and expiring on 23 April 2016.

Count 4 - D - s 61M(2).

The term of the sentence is three years and ten months. It will commence three months after the last imposed sentence. Again, having found special circumstances, the non-parole period will be 50% of the total term, that is, one year and eleven months, commencing on 24 July 2012, three months after the last imposed sentence, and expiring on 23 June 2014, when he would, in the absence of continuing to serve any other sentence, be eligible for release on parole. The balance of term is one year and eleven months, commencing on 24 June 2014 and expiring on 23 May 2016.

Count 5 - E - s 61M(2), also taking into account two offences on a Form 1, being an offence contrary to s 61O(1) and a further offence contrary to s 61M(2).

The term of the sentence is four years and two months, with a non-parole period of 50% of that term, of two years and one month, having found special circumstances. The sentence again commences three months after the last imposed sentence - that is, 24 October 2012 - and the non-parole period will expire on 23 November 2014. The balance of term of two years and one month commences 24 November 2014 and expires 23 December 2016.

Count 6 - F - s 61M(2).

The term of the sentence is three years and ten months. Special circumstances apply. The non-parole period will be 50% of the total term. It will commence three months after the last imposed sentence. It is accordingly a term of one year and eleven months, commencing on 24 January 2013 and expiring on 23 December 2014, when, in the absence of the offender continuing to serve time for other offences, he would be eligible for release on parole. The balance of term is one year and eleven months, commencing 24 December 2014 and expiring 23 November 2016.

Count 7 - G - s 61M(2), also taking into account a single offence contrary to the same section contained on a Form 1.

The term of the sentence will be four years. It will commence three months after the last imposed sentence. The non-parole period, having found special circumstances, will be two years and will commence on 24 April 2013 and expire on 23 April 2015, when, absent other circumstances, he would be eligible for release on parole. The balance of term is two years, commencing on 24 April 2015 and expiring on 23 April 2017.

Count 8 - H - s 61M(2).

The term of the sentence is three years ten months and will commence three months after the last imposed term, with a non-parole period of one year and eleven months, having found special circumstances. It will commence on 24 July 2013 and expire on 23 June 2015. The balance of one year and eleven months will commence on 24 June 2015 and expire on 23 May 2017.

Count 9 - BB - s 61M(2), taking into account a single offence contrary to the same section contained on a Form 1, but also taking into account that this was voluntarily disclosed offending.

The term of the sentence is three years, with a non-parole period of one year and six months, having found special circumstances. It will commence three months after the last imposed term, 24 October 2013, and expire on 23 April 2015, when he would be eligible for parole in the absence of further sentences. The balance of term is one year and six months, commencing 24 April 2016 and expiring on 23 October 2016.

Count 13 - L - s 61M(2), also taking into account a single offence contrary to s 61O(2) contained on a Form 1 and also taking into account that this was voluntarily disclosed offending.

The term of the sentence is three years, with a non-parole period of one year and six months, commencing three months after the commencement of the last imposed term. It will commence on 24 January 2014 and the non-parole period will expire on 23 July 2015, when, absent further sentences, he would be eligible to be released on parole. The balance of the term is one year and six months, commencing 24 July 2015 and expiring 23 January 2017.

I have, in respect of each of the previously imposed sentences, taken into account the particular age of the victims, being in the range of eight to ten years at the time, as well as also taking into account in respect of Counts 3, 4 and 6, relating to the victims C, D and F, that those offences occurred in the homes of the victims.

Count 12 - K Section 61M(2), also taking into account a further offence contrary to the same section contained on a Form 1.

In particular, I also note that the victim was six years of age and substantially less, to a greater degree than those that I have already referred to, in age to the maximum victim age of sixteen, as relevant to this section.

I also take into account that it was voluntarily disclosed offending for which a further discount must be provided.

Accordingly, the term of the sentence is four years, to commence three months after the last imposed term. Again, I find special circumstances. The non-parole period will be two years commencing on 24 April 2014 and will expire on 23 April 2016 when, absent any further term of imprisonment, he would be eligible for release on parole. The balance of term is two years, commencing on 24 April 2016 and expiring on 23 April 2018.

Count 10 - J - Section 66A(2), also taking into account the Form 1 containing three separate offences, those being two offences contrary to s61O(2), and one offence contrary to s61M(2).

I take into account that this was voluntarily disclosed offending.

The term of the sentence is seven years. It will commence three months after the last imposed term. Having found special circumstances, the non-parole period includes a more substantial discount than has previously been provided to take account of the totality of the sentences imposed. The non-parole period is three years, commencing three months after the last imposed term. It commences on 24 July 2014, and expires on 23 July 2017 when, in the absence of any further sentence, the offender would be eligible for parole. The balance of term is four years, commencing on 24 July 2017, and expiring on 23 July 2021.

The offences against J occurring on different occasions, I have determined that it is appropriate to accumulate the next imposed sentence by three months on the last imposed sentence in respect of J, to acknowledge the fact that they are entirely separate offences.

Count 11 - J - Section 66A(2), also taking into account a further four offences on a Form 1, being two offences contrary to s61M(2) and two offences contrary to s61O(2). I take into account that this was voluntarily disclosed offending.

The term of the sentence will be seven years, commencing three months after the last imposed term. Having found special circumstances, the non-parole period is three years. It will commence on 24 October 2014, and expire on 23 October 2017, when the offender will, as a matter of practicality, first become eligible to be released on parole.

The balance of term is four years, commencing on 24 October 2017, and expiring on 23 October 2021.

I recommend that when released on parole the offender be subject to the supervision of the Probation and Parole Service, with particular regard to assisting him in respect of psychological and/or psychiatric counselling and/or treatment in respect of sexual offending.

I note that, in considering the principle of totality, I regard the accumulated non-parole period imposed in this matter as being the minimum that the offender should spend in full-time custody.

I have allowed, as a result of special circumstances, and the accumulation of the sentences in respect of Counts 10 and 11, a greater reduction in the statutory relationship between the non-parole period and the balance of term than would otherwise have been the case, to provide for what the Court regards as a necessary substantial period of supervision on parole.

Mr Lord, the effect is that, as I previously expressed to you, the accumulated sentence provides for a total term of imprisonment of ten years, commencing on 24 October 2011. Because of the accumulation of the non-parole periods, you will be first eligible for parole on 23 October 2017.

If released on that date, you will be subject to a further balance of term, being what is referred to as a parole period of four years, commencing on 24 October 2017 and expiring on 23 October 2021.

A significant matter in relation to whether you are released on parole when first eligible will be the extent to which Corrective Services and the Probation and Parole authority believe that you have made an endeavour to correct your sexual orientation as it relates to children, and that will, to a significant degree, depend on your participation during the time of your imprisonment in such rehabilitation programmes as are available.

It is, accordingly, effectively in your hands as to whether you are released at the earliest opportunity on 23 October 2017.

If you should commit any further offences or breach parole when you are released, you will, of course, be returned to custody for the balance of any unexpired parole period at that time.

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Amendments

22 March 2013 - AMENDED TO FURTHER PROTECT THE IDENTITY OF THE CHILD VICTIMS.

Decision last updated: 25 March 2013

Medium Neutral Citation:	R v Lord [2013] NSWDC 16
Hearing dates:	9 November 2012
Decision date:	18 January 2013
Before:	King SC DCJ
Decision:	Sentenced to imprisonment - consisting of an overall head sentence of 10 years with an overall NPP of 6 years
Catchwords:	CRIMINAL LAW - Sentence - Forms 1 - aggravated sexual intercourse with child under 10 years and under authority - aggravated indecent assault of child under 16 - aggravated act of indecency - multiple counts - breach of trust - "Ellis" discount
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Hibberd [2009] NSWCCA 20 Dousha v R NSWCCA 263 R v Henry [2009] NSWCCA 69 R v Clinton [2009] NSWCCA 276 Pearce v R [1998] 194 CLR 610 R v Thomson; R v Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	The Crown Jonathan Luke Lord
Representation:	Mr C Smith (Offender) Director of Public Prosecution Legal Aid Commission (Offender)
File Number(s):	2011/333839
Publication restriction:	There is to be no publication of the names of the complainants or of any material which may tend to identify them.