R v Maguire (No. 3)

[2022] NSWDC 359

District Court

New South Wales

Medium Neutral Citation:

R v Maguire (No. 3) [2022] NSWDC 359

Hearing dates:

26 July 2022

Date of orders:

26 July 2022

Decision date:

26 July 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify an aggregate sentence of imprisonment of 15 years with a non-parole period of 10 years

Catchwords:

CRIME — Child sex offences — Child abuse material — Production

CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity

CRIME — Child sex offences — Sexual intercourse with child >10 <14

CRIME — Sexual offences — Act of indecency

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Sentencing procedure — Reasons for sentence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Droudis v R [2020] NSWCCA 322

Gail v R [2021] NSWCCA 16

Markarian v R [2005] HCA 25

Muldrock v R [2011] HCA 39

PB v R [2016] NSWCCA 258

R v AJP [2004] NSWCCA 434

R v Maguire (No. 1) [2002] NSWDC 92

R v TWP [2006] NSWCCA 141

Tepania v R [2018] NSWCCA 247

Category:

Sentence

Parties:

Regina (Crown)
Raymond John Maguire (Offender)

Representation:

Rosheehan O’Meagher (Crown Prosecutor)
Meredith Phelps (Counsel for the Offender)

File Number(s):

2018/00080289 & 2018/00264850

Publication restriction:

Statutory non-publication order of the names of the complainants and of any information which may enable their identities to be ascertained

REVISED EX TEMPORE JUDGEMENT

INTRODUCTION

1. On Friday 18 February 2022 after a judge alone trial Raymond John Maguire was found guilty of 15 charges in respect of three complainants upon which he was presented on the one indictment.

THE OFFENCES

2. The offences of which he was found guilty are that he:

3. COUNT 1

Between 1 September 2009 and 30 June 2012 in Wyee in the State of New South Wales did produce child pornography as offences contrary to s 91H(2) Crimes Act 1900.

4. A maximum penalty of imprisonment for ten years is specified. Upon summary conviction imprisonment for two years and a fine represented by 100 penalty units was available.

5. COUNT 2

Between 1 January 2010 and 31 December 2011 at Wyee in the State of New South Wales did, being an adult, engage in conduct that exposed RH, a child under the age of 14 years, namely 10, 11 or 12 years of age to indecent material with the intention of making it easy to procure RH for unlawful sexual activity with the said Raymond Maguire.

6. This offence is contrary to s 66EB(3) Crimes Act 1900. The maximum penalty for this offence is imprisonment for 12 years. There was no standard non-parole period that applied at the time of the misconduct, but in 2015, parliament introduced a standard non-parole period of five years. The offender shall be sentenced upon the structure in place at the time of the offence. There is also available upon summary conviction a maximum penalty of two years and a fine represented by 100 penalty units.

7. COUNT 3

Between 1 January 2010 and 31 December 2011 at Wyee in the State of New South Wales, had sexual intercourse with RH, a child above the age of 10 years and under the age of 14, namely 10, 11 or 12 years in circumstances of aggravation, namely that at the time of the offence RH was under the authority of Raymond Maguire. This offence is contrary to s 66C(2) Crimes Act 1900.

8. COUNT 4

Between 1 January 2010 and 31 December 2011 at Wyee in the State of New South Wales had sexual intercourse with RH, a child above the age of 10 years and under the age of 14 years, namely 10, 11 or 12 years in circumstances of aggravation, namely at the time of the offence RH was under the authority of Raymond Maguire, again, contrary to s 66C(2) Crimes Act 1900.

9. COUNT 5

Between 1 January 2010 and 30 June 2012 at Wyee in the State of New South Wales had sexual intercourse with RH, a child above the age of 10 years and under the age of 14 years, namely 10, 11, 12 or 13 years in circumstances of aggravation, namely at the time of the offence RH was under the authority of Raymond Maguire, again, contrary to s 66C(2) Crimes Act 1900.

10. The maximum penalty specified for offences as charged in counts 3, 4 and 5 is imprisonment for 20 years. There is no standard non-parole period specified at the time of these offences but in 2015 parliament introduced one of nine years. The offender shall be sentenced upon the structure in place at the time.

11. COUNT 6

Between 1 January 2010 and 6 June 2013 at Wyee in the State of New South Wales did he incite RH, a child then under the age of 16 years, namely 10, 11, 12, 13 or 14 years to commit an act of indecency towards Raymond Maguire in circumstances of aggravation, namely at the time of the offence RH was under the authority of Raymond Maguire. This offence is contrary to s 61O(1) Crimes Act 1900.

12. COUNT 7

Between 1 January 2010 and 6 June 2013 at Wyee in the State of New South Wales incited RH, a child then under the age of 16 years, namely 10, 11, 12, 13 or 14 years to commit an act of indecency towards Raymond Maguire in circumstances of aggravation, namely at the time of the offence RH was under the authority of Raymond Maguire, again contrary to s 61O(1) Crimes Act 1900.

13. The maximum penalty specified for offences as charged in counts 6 and 7 is imprisonment for five years. There is no standard non-parole period specified for these offences. Upon summary conviction the offender would have been exposed to a maximum penalty of imprisonment for two years and a fine represented by 50 penalty units.

14. COUNT 8

Between 1 January 2011 and 6 June 2013 at Wyee in the State of New South Wales had sexual intercourse with RH, a child above the age of 10 years and under the age of 16 years, namely 11, 12, 13, or 14 years in circumstances of aggravation, namely at the time of the offence RH was under the authority of Raymond Maguire. This offence is contrary to s 66C(4) Crimes Act 1900.

15. The maximum penalty specified is imprisonment for 12 years. There is no standard non-parole period for the time of the offence but parliament in 2015 introduced one of five years. The offender shall be sentenced upon the structure in place at the time.

16. COUNT 9

Between 1 January 2011 and 31 December 2011 at Wyee in the State of New South Wales produced child abuse material. This is offence is contrary to s 91H(2) Crimes Act 1900.

17. The maximum penalty specified for this is imprisonment for ten years. Upon summary conviction, the maximum penalty is imprisonment for two years and the fine represented by 100 penalty units.

18. COUNT 10

Between 1 June 2012 and 30 June 2013 at Wyee in the State of New South Wales had sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely 10 or 11 years in circumstances of aggravation, namely that at the time of the offence AH was under the authority of Raymond Maguire. This offence is contrary to section 66C(2) Crimes Act 1900.

19. COUNT 11

Between 1 June 2012 and 30 June 2013 at Wyee in the State of New South Wales had sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely 10 or 11 years in circumstances of aggravation, namely that at the time of the offence AH was under of the authority of Raymond Maguire, again, contrary to section 66C(2) Crimes Act 1900.

20. COUNT 12

Between 5 June 2014 and 30 June 2015 at Wyee in the State of New South Wales had sexual intercourse with AH a child above the age of 10 years and under the age of 14 years, namely 12 or 13 years in circumstances of aggravation, namely that at the time of the offence AH was under the authority of Raymond Maguire, again contrary to s 66C(2) Crimes Act 1900.

21. COUNT 13

Between 5 June 2014 and 30 June 2015 at Wyee in the State of New South Wales had sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely 12 or 13 years in circumstances of aggravation namely that at the time of the offence AH was under the authority of Raymond Maguire, again, contrary to s 66C(2) Crimes Act 1900.

22. The maximum penalty specified for offences as charged in counts 10, 11, 12 and 13 is imprisonment for 20 years. There is no standard non-parole period specified for the time the offences occurred but in 2015 parliament introduced one of nine years. The offender shall be sentenced upon the structure in place at the time of the offences.

23. COUNT 14

Between 2 November 2015 and 18 August 2017 at Wyee in the State of New South Wales, being an adult, engaged in conduct that exposed SCA, a child under the age of 14, namely 8 or 9 years, to indecent material with the intention of making it easier to procure the child for unlawful sexual activity with the said Raymond Maguire, contrary to s 66EB(3) Crimes Act 1900.

24. The maximum penalty is imprisonment for 12 years. There is a standard non‑parole period of five years in force from 29 June 2015.

25. COUNT 15

Between 2 November 2015 and 18 August 2017 at Wyee in the State of New South Wales, committed an act of indecency toward SCA, a person then under the age of ten years, namely eight or nine years, contrary to s 61O(2) CrimesAct 1900.

26. The maximum penalty specified for this is imprisonment for seven years. There is no standard non-parole period. Upon summary conviction, imprisonment for two years and a fine represented by 100 penalty units was the maximum penalty available to the Court.

27. I have specified where they applied penalties that were available upon summary conviction before a magistrate. This is not to imply that any of these offences in the circumstances ought to have been presented to a Local Court for determination. Upon my perception of the material before the Court it would be inappropriate for any of those offences to be prosecuted before a magistrate, and correctly in my view the Crown has chosen to pursue the prosecutions upon indictment in the District Court.

THE STANDARD NON-PAROLE PERIOD OFFENCE – COUNT 14

28. The one offence that carries an applicable standard non-parole period, count 14, requires some comment upon the significance of the standard non-parole period. These provisions were introduced into the Crimes (Sentencing Procedure) Act 1999 in Part 4 Division 1A of the Act. The provisions were amended after the decision of HCA in Muldrock v R [2011] HCA 39 adopting the statements of principle that were enunciated there. S 54A(1) provides that the standard non-parole period for an offence is that which is included in the table to the provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence in the table, taking into account only the objective factors affecting the relative seriousness of an offence, when it falls within the middle of the range of objective seriousness. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting matters that are otherwise required or permitted to be taken into account. Section 54B(3) requires that the Court record its reasons for setting a non-parole period that is longer or shorter, identifying each factor taken into account.

29. Objective gravity will be assessed upon the consideration of the objective factors affecting the relevant seriousness of the offence without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending bringing into account relevant factors provided in s 21A Crimes (Sentencing Procedure) Act 1999 except for those that are essential elements or integral characteristics of the offence. The fixing of the non-parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle, or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical or staged or tiered process of reasoning when assessing appropriate sentence but must identify all relevant matters bearing upon the question of the appropriate sentence and the process of intuitive synthesis discussed, for example, by McHugh J in Markarian v R [2005] HCA 25.

30. In the determination of sentence for offences for which there is specified a standard non-parole period it and the maximum penalty are legislative guideposts for the sentencing court along with other established sentencing practices, and by reference to matters identified where relevant in s 3A, 21A, 22A of the Act.

31. I shall refer to where I have placed the objective seriousness of the offence charged in count 14 when I come to deal with each of the offences for that purpose.

32. The remarks that I have offered, although applicable because of the terms of the legislation to which I referred, are considerations that apply to all the offences. As was made clear by Johnson J in Tepania v R [2018] NSWCCA 247. At para [110] of his Honour’s judgement there is a summary of the effect of the provisions consistent with what I have offered. His Honour went on to refer to the Attorney General’s second reading speech and the explanatory memorandum introducing the amendments, consequent upon the decision in Muldrock v R ibid. At para [112] his Honour continued:

“In sentencing for an offence (whether or not a standard non-parole period offence), a Court should make an assessment of the objective gravity of the offence applying general principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence”.

33. His Honour went on to specify authority supporting those various propositions. At para [113] his Honour went on to discuss the concept of moral culpability used in a flexible way generally, as his Honour observed, and which involved considerations that sometimes overlap with the assessment of objective gravity. His Honour went on to observe that mental instability might diminish moral culpability or an antecedent criminal history might illuminate moral culpability.

34. In the instant case there are no factors of provocation or non‑exculpatory duress or any mental illness or psychological impairment that will inform the assessment of objective seriousness and moral culpability for which the offender must answer in this case. He has no record of antecedent criminal offences. I note there is no suggestion of any explanation for the misconduct of which he has been found guilty other than what must be the finding that this was behaviour in which he engaged in the pursuit of his sexual interest in these three victims.

35. I observe also that the benchmarks of the maximum penalties that have been brought to account in the assessment of sentence in this case are those that are specified as the maximum penalty upon prosecution upon indictment to which I have already referred.

PRE-SENTENCE CUSTODY

36. The offender was arrested on 12 March 2018. He was allowed bail; he was thereafter committed for trial from the Local Court Wyong on 17 September 2019 and convicted of all counts on 18 February 2022. His bail was revoked on 24 February 2022 upon the Crown’s application and he has been in custody since then. The aggregate sentence I intend shall commence on that date. This is a case upon the application of s 53A Crimes (Sentencing Procedure) Act1999 that is appropriate for the imposition of an aggregate sentence bringing into account considerations of accumulation and concurrence that will inform the extent to which the indicated sentences that I shall specify should be blended.

37. Counsel concedes that the bail conditions requiring the offender to report to the police and to abstain from contact with the victims whilst he was subject to bail were not so onerous as to justify modification of the sentences that are appropriate for this misconduct.

THE FACILITATION OF JUSTICE

38. When I delivered judgement and announced the verdicts of guilty I included in my reasons the way the trial had unfolded. R v Maguire (No. 1) [2002] NSWDC 92 at paras [85] to [88].

39. The trial came before me on 9 November 2021 for mention with an estimate of four weeks including pre-trial issues to be agitated before the selection of a jury. This estimate was well and truly short of the mark. In the initial stages of the proceedings the parties elected the alternative of a trial before a judge alone. The parties indicated many pre-trial issues and presented an array of folders relevant to the rulings to be sought. Notices of motion were filed after the accused was arraigned and pleaded not guilty to the 15 counts as formulated prior to the amendments to some of the counts to which I have referred in my judgement.

40. Folders of material were marked as exhibits on the voir dire. I made orders allowing access to subpoenaed material and adjourned the matter to the following day for argument. On 10 November 2021 the parties indicated the prospect of a judge alone trial. There were discussions regarding outstanding material sought by subpoena and consideration was then given to the admission of challenged material. This continued until 17 November 2021 when the Crown and defence provided opening addresses. The trial proceeded as a judge alone trial. The evidence concluded on 10 December 2021, addresses followed on 13 December 2021 and 17 December 2021, the final day of the law term in that year, and the proceedings were thereafter adjourned for judgement in 2022.

41. I accept that the decision to elect a trial by judge alone facilitated the conduct of the proceedings: s 22A Crimes Sentencing Act 1999. Had this trial proceeded before a jury I have no doubt that it would have extended well into 2022. The transcript of evidence and submissions extended to 1,375 pages supplemented by submissions in writing and documents assembled as aide memoire. There were three complainants, each cross-examined across a breadth of material with evidence called from an array of witnesses dealing with the foster care arrangements and supervision in place for each of them.

42. Although there was no more than a modest saving in the array of material tendered and the resources required in the conduct of the trial, a greater benefit derived from the decision by the offender to facilitate justice by electing a more efficient course of having the trial before a judge alone saving at least the time that would have been necessarily consumed in ensuring that the jury were properly assisted by the advocates representing the parties and properly informed and instructed by the trial judge.

43. Section 22A of the Crimes (Sentencing Procedure) Act 1999 provides,

“(1)    A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).

(2)    A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.”

44. There is competing authority upon whether a finding in these terms attracts a discount or is a matter to be considered in the process of intuitive or instinctive synthesis required of the Court. Upon resumption today I was invited to the decision of the Court of Criminal Appeal in Droudis v R [2020] NSWCCA 322. The judgement was delivered jointly by Bathurst CJ, Hoeben CJ at CL, and Hamill J. Relevantly at paras [98] and following their Honours discussed the approach to be taken where s 22A attracts consideration in the proceedings. Upon this authority the court is not obliged to specify a percentage discount for the assessment it makes of the value in the proceedings for the facilitation by the defence of the administration of justice, even though at para [105] their Honours wrote that it would be desirable, where the facilitation made a significant difference to the sentence which would otherwise have been imposed, for specification of what sentence would have otherwise been. This has the benefit of providing transparency in the sentencing process and encouraging accused people and their legal representatives to conduct criminal trials efficiently and expeditiously. However, failure to quantify the discount or not by itself established no error and an obligation does not extend to require the court to do so.

44. On my assessment of the value in the facilitation of justice of the accused electing to proceed before a judge alone, in which the Crown joined, thereby mandating that course, I have allowed as part of the material in mitigation of penalty, consideration of the benefit for the offender in the synthesis in which I have undertaken in identifying the individual sentences that I see as appropriate for the offences charged. Thus, I intend to take the course of considering that matter in the process of intuitive synthesis required of me against the risk that to do otherwise might indicate a tiered or two step approach to the assessment of sentence which is clearly not appropriate and frowned upon by the High Court of Australia, and against which other authority has spoken when considering s 22A of the Act.

45. The accused did not give evidence in the trial. The accused did not give any evidence in response to the Crown’s case although documents were tendered and became exhibits and he relied upon evidence to prove that he was a person of good character. He didn’t give evidence in this hearing for the determination of sentence but tendered documents and called evidence from his daughter advancing that he has been a person of good character throughout his life. He relied upon the answers given in the ERISP in determination of the trial. He participated in a lengthy interview which dealt with some, but not all, of the offences upon which he was presented for trial. He chose not to participate in an interview in respect of the further offences. He bears no opprobrium for exercising his right to take that course. He denied any wrongdoing at all in the interview, but aside from the exculpatory statements there were answers upon which the Crown relied as lies impacting upon the assessment of his credibility in accordance with Zoneff v The Queen [2000] 200 CLR 234. He has maintained throughout, including up to the present time, that he is not guilty of these offences.

THE FACTS

47. The facts have been helpfully set forth with reference to transcript in a document styled ‘Annexure A', summary of evidence relating to each count.

48. I shall follow the formulation that has been adopted for that purpose. I note in the submissions on behalf of the offender that counsel acknowledges the usefulness of the document and the assistance that it provided.

49. Count 1, the charge of producing child pornography contrary to s 91H(2) between 1 September 2009 and 1 June 2012. This is an offence against the victim RH. A year and about three to six months after beginning to live with the offender, photographs were exposed in the games room that was being converted into another bedroom. The offender asked RH to undress and bend over so that he could take photographs of her vagina. She pulled down her pants and undies and bent over and he started taking photos of her vagina. She saw photographs of her vagina when he asked her to come and have a look. Her sister JH was living at the house at the time. The victim said she was in primary school, she thought year 5. The offender told her, “You can’t tell anyone, this is mine and your secret”.

50. Transcript references are p 42.24, p 42, p 43.10 to 11, p 43.32 to 35, p 44.15 to 18, p 44.41 to 44 and p 59.18.

51. Count 2 and count 3, between 1 January 2010 and 31 December 2011, arose from the one sequence of events. The first of those is grooming a child under 14 contrary to s 66EB(3) and the other is aggravated sexual intercourse of a child from 10 to 14 under authority contrary to s 66C(2) Crimes Act 1900.

52. This occurred on an occasion described as the second time, when in the shed at the offender’s home he showed her pornography and touched her beneath her clothes. That was the conduct upon which count 2 was brought. He touched her on the vagina with his hand and fingers and put his fingers inside her vagina and rubbed her clitoris for about five minutes. That was count 3. He told her that she was pretty and looked nice. She said she did not want to do this and said, “can you stop, please”. Pornography was playing at the time he was touching her. It depicted five men having sex with a woman. The offender asked if RH would like him to do some of those things to her. She interpreted this to mean have sex because that was what was being depicted. This happened before the shed was re-built and she believed she was in year 6 and still going to [REDACTED] School.

53. Transcript references for these offences are p 45 lines 45 to 50, p 46 lines 5 to 19, p 46 lines 21 to 29, p 46 line 47, p 47 line 3, p 47 line 5 to 12, p 47 line 45 and p 48 line 25.

54. Count 4 is an offence of aggravated sexual intercourse with a child 10 to 14 under authority, s 66C(2) Crimes Act 1900, between 1 January 2010 and 31 December 2011. The offender asked RH to go onto the bedroom and asked her to pull down her pants and bend over on the bed. He put his penis into her vagina and was moving back and forth. This lasted for about five minutes. She asked, “can we stop, I don’t want to do it any more”, he said “just a little bit more, please”. She said it hurt this time. This occurred before the first time in the shed which was in primary school.

55. Transcript references for this are p 49 lines 26 to 30, p 49 Iine 33, p 49 lines 39 to 45, p 50 at line 3, p 50 at line 16, p 50 at line 25.

56. Count 5, aggravated sexual intercourse with a child 10 to 14 under authority between 1 January 2010 and 30 June 2012. This was at night-time. The offender got RH out of bed and took her to the kitchen. He sat down on the dining room chair and asked her to sit on top of him. She did so and his penis entered her vagina. He asked her to move up and down. She asked to stop and he asked to keep going for a bit longer. She kept going for about a minute more and then hopped off and went back to bed. Her sisters were asleep. The offender’s wife was away in Canberra for a couple of days. Her sister JH was still living at the house. There was only one such incident in the kitchen.

57. Transcript reference are p 50 line 35 to 41, p 50 line 39 to 44, p 51 line 11, p 51 line 18 to 21, p 51 line 24 to 27, p 51 line 30 to 36, p 51 line 33 and p 51 line 45.

58. Count 6, aggravated incite act of indecency with a child under 16 under authority between 1 January 2010 and 6 June 2013. The victim said that she and the offender were in a motor vehicle he was driving. She said she was not sure if it was going to or coming back from his mother’s place, but he pulled into a laneway. She had lollies. She moved into the middle and asked her to put some lollies, probably five of them, not at once, into her vagina. He said, “can you put this lolly in your vagina”. He handed her a lolly, she put it in the vagina and then handed it back to him. He ate them and he said they tasted good. She moved into the middle seat because he had asked her to put her legs up and that made it easier access for the insertion of the lollies. She was in year 6 at the time. Her sister JH was still at home. This occurred, she said, two years the photograph incident.

59. Transcript references for this are p 53 line 32 to 35, p 53 line 39, p 53 line 41 to 45, p 54 line 1, p 54 line 15 to 25, p 54 line 41, p 55 line 1 and p 55 line 9.

60. Count 7, aggravated incite act of indecency of a child under 16 under authority between 1 January 2010 and 6 June 2013. She was roughly about 12 years of age, in primary school and her sister JH was still living at the house. She said the offender would watch her for a bit and ask her to touch her vagina, she said “no, I don’t want to”. He asked if she would be able to put a shampoo bottle up her vagina. He left the room and then came back a few minutes later. She tried to insert the bottle but it would not fit.

61. This is found at transcript p 56 line 43, p 56 line 47, p 57 line 2, p 57 line 14, p 57 line 20, p 57 line 28, p 57 line 34 and p 57 lines 45 to 48.

62. Count 8, aggravated sexual intercourse with a child 14 to 16 under authority. This referred to a time when the upstairs of the house was built and the victim was in year 6. She thinks she was in year 6 because she remembers being at [REDACTED] School with her friends and trying to spot the extension to the house from where she was. The offender called her upstairs, she went up. He laid her down on the coffee table, he pulled he pants down and inserted his penis into her vagina. This went on for about five minutes. He said, “do you know what I’m doing to you”, she said “no” and he said, “I’m fucking you”. She was pretty sure that the offender’s wife was out. She did not know where her sisters were but she thought there was no one else in the house. This happened about six months to a year before she left the house for good.

63. This material is found at transcript p 55 lines 13 to 22, p 55 line 25, p 55 lines 41 to 47, p 56 line 1, p 56 lines 6 to 8, p 56 lines 16 to 26, p 74 lines 21 to 33.

64. Count 9, using child abuse material. Between 1 January 2011 and 31 December 2011. This is in respect to the victim AH. When she was about ten she got home from school and Pauline had taken AH to netball. AH was on her bed doing homework. The offender came in asked her to lie down, took her shirt and underwear off and started taking photographs of her vagina with a camera or a phone about 50 or 60 centimetres away from her vagina. She did not see the photos.

65. Count 10, sexual intercourse with a child 10 to 14 under authority. Between 1 June 2012 and 30 June 2013. In primary school, roughly about ten, RH, AH, the offender’s wife, and the offender were living in the house. The sister JH had moved out. This happened in AH’s room. She had recently returned home from school. The wife had taken RH to netball and AH thinks she was doing homework on her bed. She got changed. The offender came in and told her to lie on the bed, pulled down her pants and undies and put his fingers inside her vagina for a couple of minutes. When he had done this, he said, “don’t tell Pauline”.

66. This evidence is found at transcript 392 lines 37 to 43, 392 line 46, 392 line 49, 392 lines 4 to 6, 392 lines 8 to 13 and 392 line 16.

67. Count 11, sexual intercourse with a child 10 to 14 under authority between 1 June 2012 and 30 June 2013. This occurred in the dining room of the house. She was then aged 11 or 12 and in primary school. The offender and his wife and RH were living in the house at the time. The sister JH had left. It happened about three or four years before she left for good and before SC-A and her sisters moved in. Only AH and the offender were at home. The wife had taken RH to netball training. It was a weekday. He cornered her up beside the bookshelf with his arm against her chest. He told her to spread her legs and she did. He pulled her pants to the side and started playing with her clitoris and then put his finger inside. She asked him to stop. He did not reply. After a couple of minutes she pushed him off.

68. This evidence is found at transcript pp 393 line 28, 393 lines 35 to 38, 394 line 30, 399 line 29, 400 line 14, 400 line 28, 394 lines 30 to 36, 395 line 1, 393 lines 41 to 48, 394 lines 6 to 10, 394 lines 15 to 20.

69. Count 12, sexual intercourse with a child 10 to 14 under authority between 5 June 2014 and 30 June 2015. In high school, year 8 between six to 12 months before the victim left for good, the wife, the offender, SC-A, and the sisters were living in the house. AH had just gotten home from school. The wife had taken SC-A and the other children to dancing. She changed from school clothes to normal clothes and was doing homework on the bed. The offender came in and asked her to lie down. She lay down, he pulled her pants and undies down. He put his fingers inside her vagina and played with her clitoris. This lasted for a couple of minutes. He was inserting his finger in and out.

70. This evidence is found at transcript pp 400 lines 17 to 29, 401 lines 32 to 40, 401 line 43 and 401 line 47.

71. Count 13, sexual intercourse with a child 10 to 14 under authority between 5 June 2014 and 30 June 2015. The offender asked the victim to lay closer to the edge of the bed which she did. He said, “I’m going to try something new”. He pulled his pants down. She saw his penis which was sort of erect. He put his penis inside her vagina for about a minute or two until she pushed him off. He said, “Don’t tell [my wife]”. She said, “I don’t feel comfortable, can we stop” but he continued until she pushed him off. It was painful. She provided an image showing the position in which she had been when the intercourse occurred. The penile vaginal intercourse only occurred once.

72. This evidence is found at transcript pp 401 lines 4 to 6, 402 lines 2 to 15, 402 line 18, 402 lines 20 to 24, 402 line 49 and 404 line 34 and 406 line 25.

73. Count 14, grooming a child under 14 years of age between 2 November 2015 and 18 August 2017. This is the first of the offences alleged by the victim SC-A. She was getting changed and he came into her room and said he would give her a chocolate if she came out. At the doorway he was rubbing his penis, he was doing this in front of her. He was wearing shorts. She couldn’t see his penis; he rubbed his pants where his penis was. When he came into her room she had nothing on but covered herself with a towel. She dressed and went into the lounge room. He was standing behind the lounge. The offender’s wife was away. Home and Away was playing on the television. Two other children were asleep. The offender typed on his tablet, how to have sex. She pushed the tablet away. He was typing in “other ones” and reading what was typed out. An older boy and girl having sex, came on the screen.

74. This evidence is included in MFI 27, the interview of SC-A on 1 February 2018 and in the questions and answers 155, 156, the transcript 828 line 30, 831 lines 24 to 26, 831 line 22, 853 line 49, 854 line 6, 861 line 34, question and answer 117, answer 59 to 60, transcript p 756 line 1, question and answer 62 to 63, question and answer 65, question and answer 198 to 199 and question and answer 216 to 221.

75. I pause to note here regarding count 14 that there was a significant difference in the positions taken by the Crown on the one hand and Mr Conditsis appearing for the offender on the other. The analysis of the evidence, what I understood, and what I found to be the event, I dealt with in my judgement upon the determination of the trial.

76. Finally, count 15, committing an act of indecency toward a child under 10 between 2 November 2015 and 18 August 2017. The offender pulled part of his pants down and showed her his private, using her word. After showing his iPad, he pulled the front down and using her words, “He stick his thing out”, also described by her as his willy. There was nothing covering it. He was touching it with one hand and wobbling it around. He was doing that for a couple of seconds and then someone knocked on the door.

77. Exhibit M showed a drawing of the offender’s penis made by SC-A and depicts where the offending took place, including the occasion where the offender showed his penis to the child. On that diagram, it depicts where she was sitting when he did this.

78. The evidence is found at question and answer 65, answer 223, answer 225, answer 230, answer 233, answer 234, answer 238 to 239, transcript page 750 lines 8 to 9, 752 lines 47 to 51 and 753 lines 11 to 15.

79. In addition to the evidence led relevant to the specific charges, the Crown adduced evidence to provide context. The Crown led evidence of other acts of alleged misconduct by the offender towards RH and AH. These were not the subject of charges. Those episodes of conduct asserted by RH were that he would take her to the back of the shed in the rear yard of the property and touch her vagina and breasts beneath her clothing, that in the shed he showed her video pornography depicting multiple males having sex with a woman, that in the shed he had penile vaginal sexual intercourse with her, and in the car he touched her vagina and breasts beneath her clothing after netball training.

80. The other acts alleged by AH were digital penetration of and playing with her vagina after lowering her pants and underpants at least once a week including in her room, digital penetration of her vagina after lowering her pants and underpants twice in the loungeroom, in the upstairs loungeroom showing images of females with dildos and females and males having sex, and digital penetration of her vagina in the spare room when on a bed after the offender lowered her pants and underpants.

81. This evidence was before the Court for context only and not as establishing a tendency on the part of the offender to commit offences of the type charged. The Crown case was not advanced upon the basis that the offender engaged upon a course of misconduct but charged him with specific allegations arising what the complainant said was a course of sexual misconduct. My decisions were to be made with the particular and precise occasion alleged in respect of each charge.

82. As I noted, I found the accused guilty of each of the counts upon which he was presented.

OBJECTIVE SERIOUSNESS

83. The Crown has in a separate document in submissions helpfully offered its assessment of the objective seriousness of each of the offences. The basis upon which this assessment is made in each case included consideration of the relevant facts and circumstances that were pertinent to each of the charges including the nature of the sexual act involved.

84. The Crown referred to authorities which are well‑known: R v AJP [2004] NSWCCA 434, and specifically judgement of Simpson J, noting that the facts and circumstances of each case including the nature of the conduct enable a proper evaluation of objective seriousness, including how long the offences took, the degree of force or coercion, whether there were threats or pressure to ensure compliance, and any immediate apparent effect upon the victim. In Gail v R [2021] NSWCCA 16, R A Hulme J, with whom Johnson J and McCallum JA agreed, spoke of the age range specified in the offence making provision, the relevance of the age of the child along that scale that is there provided in the particular provision, the actual age is a matter relevant, even though it is an element of the offence that is charged.

85. The other factor that is brought to account is that these events were not isolated and did not come to an end through voluntary cessation by the offender but because the children were removed from his home largely at their instance according to the evidence that was led.

86. Thus the assessment made is upon the ages of the victims, the nature of the acts involved, the relationship between the offender and the victims, including the differences in their respective ages. There were protests by the victims, as articulated by them in respect of counts 2, 3, 4, 5, 11, 12 and 13. Both RH and AH were told to keep the conduct secret, and the conduct came to an end not through a cessation by the offender but when the children RH and AH ran away, and when SC-A complained to the offender’s wife, and consequently was removed from their care.

87. The Crown notes that the offending occurred in the home where each of the victims were living. The Crown initially advanced the aspect of vulnerability but steps back from that, noting that those factors of age, the relationships between them and the offender, are all matters that form part of the factual matrix for the assessment of sentence.

88. The children had come from difficult circumstances to be placed in foster care, and the evidence was quite clear in the trial that, notwithstanding their wish not to be in this home and wanting to return to their parents, the organisation responsible for the placement and supervision were active in discouraging their removal to be returned to their biological parents.

89. The Crown also referred to breach of trust but warned against the risk of overlap with the elements for those offences which have the element that the victim was under the authority of the offender. There are distinct concepts of trust and authority but there is a measure of overlap and I understand the need to be careful not to double count those two factors in such a way as to increase the assessment of objective gravity inappropriately. But I agree with the proposition advanced by the Crown that the offences which have as an element that the children were under the authority of the offender still allow the Court to bring to account any breach of trust involved, but without attributing undue weight to this as an aggravating factor. Those offences which do not include an element of under authority carry the full force of s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999.

83. There are no matters unique to the offender which inform the objective seriousness of the offending and I would find, consistent with the submissions made by the Crown and which are not challenged on behalf of the offender, that upon the findings of fact made in this trial:

• Count 1 should be seen to be in the lower mid-range,

• Counts 2, 3, 4, 5 6 and 7 within the mid-range,

• Count 8 within mid-range,

• Count 9 low mid‑range,

• Count 10 within mid-range,

• Counts 11, 12 and 13 within mid-range,

• Counts 14 and count 15 lower mid-range.

91. I should observe that though one comes to the view in the case of count 14 that an offence is in the low mid-range this does not lead to the conclusion that the standard non-parole period to be imposed for that offence will be somewhere below five years, the period specified in the table to Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999. This is because the assessment of what is the appropriate sentence involves the subjective case presented on behalf of the offender to which I am to come and the assessment of moral culpability which will inform the extent to which the standard non‑parole period specified will be ameliorated by those other factors.

THE OFFENDER

92. The offender was born in 1953 and this year reached his 69th birthday. He has no prior offences recorded against his name and relied upon his antecedent reputation as a person of good character. He did so in the trial and he does so on the sentence.

93. This is tempered in this instance, however, because of the application of s 21A(5A) Crimes (Sentencing Procedure) Act 1999 which provide 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 considered as a mitigating factor if the Court is satisfied that it was of assistance to the offender in the commission of the offence.

94. The offender’s status as a foster carer rested upon the proposition that he was a person of good character, whereupon he was entrusted with these children and thereby had access to them. Moreover, the legislation as cited has long recognised that prior good character is often a feature of the perpetrators of sexual offences against children: R v TWP [2006] NSWCCA 141 and PB v R [2016] NSWCCA 258.

95. This is the first time he has been in gaol. He suffers from an array of medical issues set forth in the documents assembled by Justice Health and tendered in his case. These were recorded in his Justice Health files including the extensive medications that are prescribed. His afflictions and needs are helpfully summarised in the submissions made on his behalf. It suffices if I turn to that list.

96. He suffers from hypertension, asthma, chronic kidney disease, type 2 diabetes, gastroesophageal reflux disease, skin cancer, arthritis, prolapsed disk, renal cholic, microalbuminuria, renal stones and Bowen’s disease which is a form of early skin cancer, glaucoma, poor hearing, cramps, and depression. His physical ailments are clearly established.

97. Regarding depression and the proposition asserted that he suffers from post‑traumatic stress disorder, I am not prepared to make a finding in those terms in the absence of any proper diagnosis or assessment by a psychologist identifying that he might meet the criteria for those conditions.

98. His daughter gave evidence and spoke to a document that she prepared in his support. I have no difficulty accepting her representations. Her perception of her father is that he has been a gentle, patient, and optimistic person, he consistently opened his home to her friends and extended family. It is noteworthy that his wife at the time of these events and during the trial was not the mother of his daughter. She is his only child. In the relationship with his wife current at the time of the offending he, and no doubt she, readily opened their home to the witness, his daughter, and her family. I have no difficulty accepting that.

99. She clearly holds him in great affection. She sees him as her best friend and someone upon whom she could always rely. She has suffered enormously since he has been taken into custody and without him she suffers her own challenges, nothing which extends to any psychological or medical condition upon the material I have, but I accept that the distress she is experiencing is genuine.

100. After decades involved in the criminal justice system it is in my constant experience that not only is a person who goes to court and faces gaol a sufferer because of misconduct, but a ripple effect extends to their immediate and extended family who all, if they care for their family member, must make significant adjustments in their life to be able to continue as best they can to accommodate their relationship.

101. She will continue to support and remain supportive of her father throughout the balance of his life.

102. Her husband has provided a reference, speaking again in positive terms of the offender. He has known the offender by way of his wife with whom he has been in a relationship for 24 years.

103. There is a handwritten document provided by Mr Geoff Peck who has known the offender for some 16 years, again speaking of him in the most positive terms.

104. Klyde Morris provided a document. He also gave evidence in the trial speaking to the offender’s character. He also speaks well of him and has him in high regard.

105. His older brother provided a reference. He has, of course, known the offender since he was born, being his older brother. He knows him as a person of good character who cared for their mother for the last ten years of her life until she died a couple of years ago. He continues to stand by his brother.

106. Finally the offender’s brother-in-law, known him for some 42 years, speaks of him in the most positive terms.

107. The proceedings could not be reached until today because there had been proposed a report from a psychologist. That was not able to be prepared until late June. That has not been tendered and I make no further comment upon it other than to note that that report was provided but apparently was not such as to be of any assistance to the Court.

108. Although it is said in evidence by his daughter, and by implication in representations he has provided by way of his diary, that he suffers from post‑traumatic stress disorder, a clearly identifiable psychological condition, I am not able to make a finding in those terms. I accept that in his work as a tow truck driver, and therefore as a type of first responder to often tragic circumstances, he has no doubt seen his share of horror that is bound to have had some impact upon him throughout his life. It is something of which I take notice that those sorts of experiences accumulate, they never go away but it is not possible on the material before me to find in positive terms that he suffers from post-traumatic stress disorder and if so to what extent. However, I accept that he has had experiences that have at least in some measure impacted upon him negatively, but there is nothing to suggest that whatever the nature of those events and the impact upon him, there is any connection between any of that and what he has been found to have done in this case.

109. I accept that his time in custody by reason of his physical impairments and his ongoing need for care and medication will impose a more onerous set of circumstances for him in custody. I do not accept that he suffers from depression in the nature of a disorder such as to attract the application of the decision in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 and specifically the judgement of McClellan CJ at CL, and it is not surprising that someone who is facing gaol for significant criminal misconduct and for a significant period of time will at least to some extent be anxious and suffer a measure of melancholy because of their circumstances.

110. His time in gaol has so far not been without incident. There is no issue raised regarding a document from the Daily Telegraph referring to a Long Bay Gaol inmate’s throat having been slashed by another prisoner. There are images of the gaol and some of the captions in the following terms:

“Guards broke up the fight and found two prison made weapons that were allegedly used, while MC, 40, was rushed to St Vincent’s Hospital in a serious condition”.

Then:

“The younger man who was injured was arrested and taken to Maroubra Police Station where he was charged with attempted murder”.

111. The victim of that crime appears to have been charged with three offences of sexual intercourse with a child under 10, for killing a child, for unlawful sexual activity, and using a carriage service to send indecent material. It is said from the bar table that the offender witnessed this event and that consequently by reason of the offences of which he has been convicted, he suffers a measure of anxiety for his own safety.

112. It was also said by his daughter that he complained to her of having been threatened when he was at the Kariong facility by a prison officer who said words to the effect, “if I get hold of you by yourself, I will bash the living Christ out of you.” The description of what was said, given by the offender’s daughter, was in the third person rather than in the direct speech which I have offered, but the gist and effect of what she was told by the offender there is clear. It is not known what that was about, whether the prison officer was simply a bully, whether there had been some interaction between them that caused offence, but notwithstanding that this is hearsay evidence and there is little to identify precisely why it occurred and the impact upon the offender, I bring it to account as part of the difficulties that he is experiencing in gaol but with limited weight to be attributed to it.

113. Because of COVID-19, there have been significant limitations for people in custody I accept, and these have been confirmed in communications that came from Corrective Services over the luncheon adjournment, now exhibited before me and consistent with what the offender provided in his handwritten notebook listing the many occasions when he has been in lockdown and that he was diagnosed with COVID-19, was transferred from the facility where that occurred, but has since been returned apparently having come through the experience without any ongoing symptomatology or difficulty.

114. I do not conclude though that he is not at risk. He has several ailments that present problems for him. Having had this disease myself earlier this year, it can be debilitating. Some people it does not affect as badly, I would note, and perhaps he has been fortunate to come through on this occasion at least with minimal sequalae, but that said, there have been a number of cases now where people in gaol have suffered the disease and notwithstanding the wonderful work done by Corrective Services up until a certain point when no one in gaol was infected, things have changed and it is the fact that his time in gaol has been burdensome by reason of COVID including because he was infected. All of this is brought to account as special circumstances upon which to reduce the custodial component of the sentence to be imposed.

SUBMISSIONS

115. The purposes of sentencing are clear; all are engaged in this instance. They are articulated in s 3A Crimes (Sentencing Procedure) Act 1999. There must be adequate punishment for this misconduct. On any view it is egregious. There needs to be appropriate weight attributed for specific and general deterrence. There is a need to provide protection from the offender, to promote his rehabilitation, to make him accountable, to denounce his conduct and to recognise the harm to the victims.

116. His prospects for rehabilitation were the subject of address. I don’t find that on the material I have that he has good prospects for rehabilitation. There is nothing before me that would enable me to say so, but I accept that the custodial component of the sentence will expire at a time when he will be significantly older than he is, and by reason of deterioration through age he is unlikely to pose a risk for children when he is at the point of eligibility for his parole.

117. The offender’s submissions acknowledge the ages of the victims, the relationship between the offender and the victims, that this offending occurred over almost 8 years, his age at the time, 56 to 64 years of age and the contrasting youth of the victims. It is said on his behalf that this was not planned or organised criminal activity. I don’t accept that submission entirely. I do not find that he embarked upon this as part of a planned or organised criminal activity. The appropriate finding I believe is that he simply surrendered to the desires that he unfortunately developed regarding these children and took opportunities when they presented to him.

118. I accept that he has a compelling subjective case and I accept that he is otherwise a person of good character, but as has been pointed out and acknowledged, s 21A(5A) Crimes (Sentencing Procedure) Act 1999 must be brought to bear. It is conceded that the threshold provided in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed. I agree that the commencement date should begin on the day he came into custody and in accordance with the s 53A Crimes (Sentencing Procedure) Act 1999 this shall be an aggregate sentence.

119. I am told that he sought protective custody but there has been nothing forthcoming from corrective services as to whether that is going to be granted. There is no material before me to show that he is in fact in need of protective custody though I accept that he might well have the perception that he would prefer to have protective custody considering his fears, subjective though they might be, arising from the nature of his conduct and what he has experienced so far in gaol.

120. It will always be a matter for him to pursue protective custody if he wishes to do so but ultimately it is a matter for corrective services to decide whether to extend that to him. I observe that there are so many cases involving offenders against children in sexual misconduct that the arrangements once in place to keep such offenders within one centre is no longer the practice.

121. At this point, Ms Phelps, the offender’s counsel brought to my attention that in fact the offender has been in protective custody, evidenced in recent emails forming Exhibit B in the proceedings. This asserted,

“Maguire is held in protective custody as a SMAP with other SMAP inmates. Maguire is as an unsentenced remand inmate so can be housed in medium and maximum security correctional centres. I’m not sure what you mean by conditions of custody however MSPC is an older correctional centre, the cells do not have heating so extra blankets are usually issued during winter months, communal showers in each wing and then the exercise yards. Each cell has a toilet, sink. Maximum two inmates per cell. Two out cells have a bunk bed”.

122. So, he is in protective custody but what that involves is not entirely clear on the material I have, though I would accept that at least to some extent there are restrictions consequently.

THE SENTENCE

123. I have decided to impose an aggregate sentence. The aggregate sentence will consist of a non-parole period of 10 years commencing from 24 February 2022 with a head sentence of 15 years that will expire on 23 February 2037. The offender will be eligible for release to parole on 23 February 2032.

124. The sentences I have identified as appropriate for each of these offences are as follow:

• Count 1, producing child pornography, sentence of 3 years.

• For Count 2, grooming a child under the age of 14 years, a sentence of 4 years.

• For Count 3, aggravated sexual intercourse with a child under 14 years and under authority, a sentence of 5 years and 6 months.

• Count 4, aggravated sexual intercourse with a child under 14 years and under authority, a sentence of 7 years.

• For Count 5, aggravated sexual intercourse with a child under 14 years and under authority, a sentence of 7 years.

• Count 6, inciting an act of indecency with a child under 16 under authority, a sentence of 3 years 6 months.

• Count 7, aggravating an act of indecency, child under 16, a sentence of 3 years 6 months.

• Count 8, aggravated sexual intercourse, child 14 to 16 years, a sentence of 7 years.

• Count 9, produce child abuse material, a sentence of 3 years.

• Count 10, aggravated sexual intercourse child of ten to 14 under authority, a sentence of 6 years.

• Count 11, aggravated sexual intercourse, child ten to 14 under authority, a sentence of 6 years.

• Count 12, aggravated sexual intercourse, child ten to 14 under authority, a sentence of 6 years.

• Count 13, aggravated intercourse, child ten to 14 under authority, a sentence of 7 years.

• Count 14, grooming of a child, a sentence comprising a non-parole period of 1 year 5 months, with a parole period of 1 year 1 month which is a total sentence of 2 years and 6 months; that being a standard non-parole period offence I am obliged to specific a non-parole period.

• Count 15, an act of indecency, a sentence of 2 years and 9 months.

125. I have aggregated those sentences into one of 15 years with a non‑parole period of 10 years upon a finding of special circumstances by reason of the offender’s age that this is the first time he is serving a custodial sentence and the various physical limitations that afflict him, and he will need an extended period in the community to assimilate back to his family and life generally.

126. 24 February 2022 and eligible on 23 February 2032 and the overall sentence will expire on 23 February 2037.

127. Exhibits to remain on file.

128. The offender stands convicted of each of the offences of which I found him guilty.

**********

Decision last updated: 22 August 2022