R v MC (No 2)

[2021] NSWDC 271

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v MC (No 2) [2021] NSWDC 271

Hearing dates:

8 April 2021

Date of orders:

8 April 2021

Decision date:

08 April 2021

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 3 months.

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child >14 <16

SENTENCING — Relevant factors on sentence — Delay - Totality

SENTENCING — Subjective considerations on sentence — Health issues

Legislation Cited:

Crimes Act1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Cahyadi v R [2007] NSWCCA 1

Jonson v R [2016] NSWCCA 286

MC v R [2017] NSWCCA 274

Porter v R [2019] NSWCCA 117

R v Blanco (1999) 106 A Crim R 303

R v Dent (unreported, NSWCCA 14 March 1991)

R v Edwards (1996) 90 A Crim R 510

R v Gavel (2014) NSWCCA 56

R v Todd (1982) 2 NSWLR 517

Category:

Sentence

Parties:

Regina (Crown)
MC (Offender)

Representation:

Counsel:
Ms V Morgan (Crown
Mr M King (Offender)

Solicitors:
Mr S Baumgarten (ODPP)
Ms E Somerville (Legal Aid NSW)

File Number(s):

2016/00218094

Publication restriction:

Statutory non-publication order in relation to the identity of the complainant

Judgment

1. The offender MC, 77 years of age, appears for sentence, having been found guilty at Wagga Wagga District Court on 26 February 2021 after a judge alone trial, of two counts of sexual intercourse without consent, pursuant to s 61D(1), Crimes Act1900 (NSW) (Counts 2 and 4 on Indictment). The maximum prescribed penalty for that offence is 10 years imprisonment. There is no prescribed standard non-parole period.

2. The offending occurred between 12 April 1990 and 16 March 1991, when the victim, T now known as T, was 14 or 15 years old.  She was the girlfriend of the offender’s 18-year-old son, G. 

3. As at the time of the offending, s 61D(1), Crimes Act was in the following terms:

“Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse shall be liable to penal servitude for eight years or, if the other person is under the age of 16 years, to penal servitude for 10 years”.

Facts on sentence

4. For the purpose of sentencing the offender, I am satisfied beyond reasonable doubt of the following facts. 

5. The victim T, is now 45 years of age having been born in May 1975. As at 1990/1991 she was 14 or 15 years old. She was living in Wagga with her parents.  She came to know the offender in circumstances where her older sister J, began a relationship with the offender’s son, CC.  At that stage, the offender and his family were living at XX.

6. XX is a small village, approximately 20 minutes drive west of Wagga Wagga.  The offender and his family lived in a converted service station. 

7. The victim met the offender’s son, G at a family event some time before his 18th birthday, which was in April 1990.  At this stage, the victim was 14 years old, turning 15 in May 1990.  On or about 12 April 1990, the victim was invited to G’s 18th birthday party.  She began a relationship with G at his 18th birthday party and she stayed over at his house after the party.

8. The second time the victim stayed over at the offender’s home was about a month after G’s 18th birthday party.  When she stayed over at the offender’s house, she was not allowed to sleep together with her boyfriend, G. The arrangement was that she would sleep in G’s room and he would sleep on a mattress in the lounge room. 

9. On the second occasion when the victim stayed at the offender’s house in G’s bedroom, she gave evidence that she had gotten into bed, started to doze off when she heard what she assumed was the offender, leaving his bedroom and walking down the hallway before returning to his bedroom. She gave evidence that she started dozing off again and was almost asleep when she felt a hand on her shoulder. She was then rolled onto her back and saw that it was the offender. The offender then put a hand over her mouth and said something like, “Don’t make a noise, or I’ll hurt you” [T 13.11 22/2/21].  He then he put his other hand under the blankets and then began to put his fingers inside her vagina “really hard” [T 13.16 22/2/21].  This conduct constituted the offending in relation to Count 2.

10. She gave the following evidence, “I don’t know how long it went on for but it hurt and I just froze.  I was crying but I couldn’t move” [T 13.17 22/2/21].  She described that whilst the offender’s fingers were in her vagina it was “hard and it was very painful” [T 14.21 22/2/21]. She described that the offender had his thumb under her chin and she demonstrated during evidence the position of his thumb.  She described that the pressure on her mouth was “quite firm” [T 13.49 22/2/21] and was pushing her into the pillow.  She described it as, “very weighted” [T 13.49 22/2/21].  The victim gave evidence that she was shocked, she did not know what was going on and was crying.  She also remembered that the rain on the roof was very loud by this stage. 

11. The victim gave evidence that the next thing that happened was that the offender, after he took his hand off her mouth, reached across and pulled a pillow over her face.  She was not able to breathe until she was able to move her head.  She recalled crying so much at this stage that the tears went into her ears.  She gave evidence that the following occurred after the pillow had been placed over her face:

“He climbed on top of me and that’s when he put his penis in my vagina and then started thrusting so hard” [T 15.8 – 15.9 22/2/21]. 

12. She continued:

“He said something similar to, ‘Don’t say anything to [G] because if you do I’m going to tell him it was your idea’” [T 15.13 – 15.14 22/2/21]. 

13. She did not know how long the sexual act continued for but said, “It felt like forever.  It didn’t ever seem like it was going to end” [T 15.17 22/2/21].  She was asked during evidence how it did end and she said as follows:

“He, just at the end, he came, ejaculated and as that was happening he said to me, “No wonder my son likes you, you’re good at this.” And that’s when he came and then climbed off” [T 15.20 – 15.22 22/2/21]. 

14. This conduct constitutes the act of sexual intercourse in relation to Count 4.

15. After the sexual act concluded, the victim went to the laundry/toilet area to clean herself. She described that she vomited in the toilet before scrubbing her vagina and legs.  She gave evidence that she wanted to make herself “clean” [T 15.39 22/2/21] even though it was hurting.  She said she could not stop cleaning herself. 

16. She ultimately came out of the toilet and then spoke to her then boyfriend, G.  Initially she told him she had had a bad dream.  After G’s mother, C insisted that she go to bed, she told G “roughly” [T 16.24 22/2/21] what had happened.  She gave evidence that G told C that the offender had been in the room and had “done stuff to her” [T 16.27 22/2/21] and that C said to her, “Stop making up lies” [T 16.28 22/2/21] and told her to go to the room.  The victim returned to G’s room where the offending had occurred and stayed awake until the following morning.  She got up early the following morning and told G to take her home.

17. There were two complaints made by the victim. Firstly, a complaint made in late 1991 or early 1992, during a family holiday to Dalmeny where G, the offender and other family members were present and secondly, a complaint made to the victim’s older sister, J in early 1992 after the family holiday to Dalmeny. 

18. The victim did not provide a statement to police until 17 December 2013 when she was 38 years old. This was 22 to 23 years after the offending. 

19. The offender was arrested on 19 July 2016, and he was charged with the offending.  He participated in a record of interview at that time and denied the offending.

20. The charges were committed for trial on 23 November 2016 from the Wagga Wagga Local Court.  The matter proceeded to trial on 22 February 2021 before me. 

21. Those facts which I have found proved beyond reasonable doubt clearly disclose very serious objective criminality.  The victim was subjected to two forceful sexual acts which were accompanied by additional violence and threats by the offender.  It is clear that the offending has had a devastating effect on the trajectory of the victim’s life and I will refer later in my remarks to the victim impact statement. 

22. I note at this stage that the offender has spent seven days in custody in relation to this offending, that is between 10 and 16 June 2017.  He had been eligible for parole in relation to a previous sentence on 10 June 2017. He was granted parole and also bail in relation to this offending on 16 June 2017.

23. In circumstances where the offender has spent seven days in custody, the sentence imposed today will be backdated by seven days from today’s date.

Assessment of objective seriousness

24. In assessing the objective seriousness of Count 2 on the indictment, I have taken into account the following factors:

1. The age of the complainant at the time, namely 14 to 15 years.

2. The age disparity between the complainant and the offender in circumstances where the offender was 47 or 48 years old at the time.

3. At the time of the offending, the complainant was staying at the offender’s house, a place where she was entitled to feel safe.

4. The nature of the sexual intercourse, being digital penetration, recognising that there is no hierarchy of seriousness based upon the type of sexual act alone.

5. The degree of force used and the threats made during the commission of the offence.  Firstly, the offender had his hand over the complainant’s mouth and at the time threatened her by saying, “Don’t make a noise or I’ll hurt you.” The complainant also described that whilst the offender’s fingers were in her vagina it was “very painful”.

6. At the time of the offending, the complainant was crying.

7. I accept that there is no evidence of planning in relation to the commission of the offence.

25. The Crown submitted that the offending fell within the middle of the range of objective seriousness.  Mr King, on behalf of the offender, submitted that the offending fell below the mid-range.  Having regard to the above factors, I assess the objective seriousness as being below the middle of the range.

26. In relation to assessing the objective seriousness of Count 4, in addition to those factors  that I have referred to previously, that is factors (1), (2) and (3), I have taken into account the following additional factors:

1. The nature of the sexual intercourse, being penile/vaginal intercourse, which continued until ejaculation.  I also note that no condom was used.

2. The degree of force used during the commission of this offence, namely the offender placing a pillow over the complainant’s face in circumstances where she was initially not able to breathe until she moved.

3. That at the time of the offending the complainant was crying.

4. That the offender made the following degrading and belittling remarks to the complainant namely, “No wonder my son likes you, you’re good at this”.

27. In relation to this offending, the Crown submitted that it falls into the mid-range of objective seriousness.  Mr King on behalf of the offender submitted that the offending was below the mid-range. 

28. Having regard to the above factors, I assess the objective seriousness as being in the middle of the range.  Most important in that assessment was firstly, the nature of the sexual intercourse being penile/vaginal intercourse and secondly, the degree of violence used during the commission of the offence.

General sentencing principles

29. In relation to sentencing for sexual offences against children, the Court notes the remarks of Lee J in R v Dent (unreported, NSWCCA 14 March 1991) as follows:

“One begins with the proposition that our community views, with great concern, the sexual molestation of children by adults and that has been acknowledged by the legislature.  Little children are entitled to grow up free from defilement by sexual predators and free from the risk of psychological upset, confusion and difficulties later in life, caused by such conduct”.

30. Whilst the victim in this matter cannot properly be described as a “little” child having regard to her age, the general principles nonetheless remain applicable. Sentences imposed for offending in relation to children must not only have a very significant element of general deterrence but must also punish the offender and denounce the conduct (see s 3A, Crimes (Sentencing Procedure) Act 1999 (NSW)).

Aggravating factors

31. The Crown relied upon one aggravating factor, namely that the offence was committed in the home of the victim. The Crown relied upon Jonson v R [2016] NSWCCA 286.

32. In circumstances where I have already taken into account in assessing the objective seriousness that the offending occurred whilst the victim was staying at the offender’s house and while she was at a place where she was entitled to feel safe, I do not propose to double count this factor.

Victim impact statement

33. The victim, T prepared a detailed victim impact statement. She also read it during the sentence proceedings.  She outlined the impact of the offending in a number of ways, including the following:

“One word I use to describe how [MC] raping me has made me feel is POWERLESS.

It still makes me angry that he has had the power and has had all of these years to make me feel so POWERLESS. 

I’m usually a strong and determined person and always thought that in a dangerous and painful situation my response would be to fight. 

In the fight, flight or flee response, I believed I would fight but I didn’t, I froze and now this affects me every day.” 

34. She continues:

“Since that horrible night, I have not been able to enjoy some of life’s simple pleasures such as loving the sound of rain on a tin roof. It is calming and pleasant to most people, but to me when I hear this it’s my own worst nightmare.  The noise and smell of rain brings me straight back to that dreadful night.  I find myself shaking and sometimes tears running down my cheeks and feeling totally out of control of my emotions. 

Rain, to me, is my own private hell on earth.”

35. She also described in detail the effect the offending has had upon how she has raised her own children and grandchildren.  She states as follows:

“After I had my children, I became super overprotective of them, even more than what’s expected of a new mum. 

I thought I was in a safe environment at [MC]’s house in XX. I was there with my boyfriend and his parents. 

I became so overprotective of my children that they were not allowed to sleep at their friends’ house or even go to sporting events unless I was there watching their every move so I could protect them. 

I have always tried to be the best parent that I could be, but I will always look back and be disappointed that because of what [MC] did to me, I was not able to give my children and grandchildren the freedom they deserved because of the fear I had that this would happen to them.”

36. She also describes how the offending has affected her relationships with her partners. She states as follows:

“The fear of trusting men has followed me throughout my life since that horrendous night.  I have not been able to enjoy a totally meaningful and trusting relationship.

Sex with my partners has always been difficult for both me and them. 

Sometimes during sex, I find myself having flashbacks and being unable to continue and this has caused a lot of arguments, stress and even relationship breakdowns.” 

37. The victim also described that she has ongoing nightmares that continue until the present time.  She outlined in detail the additional stressors created by the delayed trial process and her emotional distress during the trial.

38. Courts now well understand the significant effects upon victims of sexual offending.  In R v Gavel (2014) NSWCCA 56 at [110], the Court stated as follows:

“This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond at [49], referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can do”. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364[3], 368-372 [26] – [39].

39. It is clear to me that the now well understood effects upon victims is precisely the situation in which this victim has found herself. The victim has demonstrated considerable courage to firstly report the offending and, secondly, to give evidence during the trial. The Court is hopeful that now the proceedings are at an end, that the victim can look forward to a more positive future. One of the purposes of sentencing is to recognise the harm done to the victim of the crime (see section 3A(g), Crimes (Sentencing Procedure) Act.

Subjective circumstances

40. The offender is now 77 years of age, he will be 78 in April 2021. 

41. He has a criminal history.  In 2015 he was sentenced for four offences, as follows:  indecent assault of a victim under the age of 10 years, he was sentenced to imprisonment for a fixed term of 12 months, dating from 11 March 2016 and expiring on 10 March 2017. 

42. The second offence in respect of which the offender has served a sentence is for an offence of sexual intercourse with a person under the age of 10 years.  He received a total term of imprisonment of 3 years, commencing on 11 March 2016 and concluding on 10 March 2019 with a non-parole period of 1 year and 3 months.  That term commenced on 11 March 2016 and concluded on 10 June 2017. 

43. The third offence in respect of which the offender was sentenced was an offence of indecent assault of a victim under the age of 10 years. He received a fixed term of 1 year and 3 months to commence on 11 March 2016 and concluded on 10 June 2017. 

44. The fourth offence in respect of which the offender was sentenced was an offence of indecent assault of a victim under the age of 10 years.  He received a fixed term of 9 months, commencing on 11 December 2015 and concluding on 10 September 2016. 

45. Having regard to some partial accumulation, the total effective sentence was 3 years and 3 months with a non-parole period of 18 months. 

46. I will later in my remarks, summarise the facts and sentencing remarks of Norrish DCJ who sentenced the offender on 17 December 2015 at the Downing Centre District Court.

47. Having regard to the timing of those offences, that is that offending occurred between 9 April 1999 and 10 April 2000, the offender had no previous criminal convictions at the time of the current offending.  Whilst ordinarily that would entitle him to some leniency on sentence, it is accepted that prior good character is of less significance in sentencing for child sexual assault offences and I will give it less weight.

48. The following material was tendered on behalf of the offender during the sentence proceedings:

1. Exhibit 1 - Report of Dr Azab dated 5 March 2021 in relation to the offender’s current medical conditions;

2. Exhibit 2 - Psychological report of Dr Annie Woodhouse dated 10 March 2021, in relation to her having treated the offender since April 2017;

3. Exhibit 3 - Podiatrist report of Dr Hamilton dated 5 March 2021;

4. Exhibit 4 - Cardiologist report of Associate Professor Michael McCreadie dated 28 May 2019;

5. Exhibit 5 - Further cardiologist report of Associate Professor Michael McCreadie dated 16 December 2019;

1. Exhibit 6 - Neurosurgeon’s report from Dr Jacob Fairhall dated 20 August 2019;

2. Exhibit 7 - Further neurosurgeon’s report from Dr Jacob Fairhall dated 10 December 2019;

3. Exhibit 8 - Further report from Dr Azab in relation to the offender’s wife, C dated 5 March 2021;

4. Exhibit 9 - Oncologist report from Dr Chloe Khoo in relation to C dated 3 March 2021;

5. Exhibit 10 - Remarks on sentence of Norrish DCJ from 17 December 2015;

6. Exhibit 11 - Copy of the material tendered before Norrish DCJ which is particularised in the offender’s tender bundle on sentence covering sheet;

7. Exhibit 12 - Court attendance notice;

8. Exhibit 13 - Chronology of the prosecution; and

9. Exhibit 14 - Defence written submissions.

49. During these sentence proceedings, Mr King on behalf of the offender relied upon the background outlined in the judgment of Norrish DCJ, from 17 December 2015. 

50. The subjective material that was tendered before Norrish J established as follows. The offender and his wife, C have been married for 50 years and it is clear, from the subjective material before Norrish DCJ, that the offender, up until the time he was charged with the offending for which he was sentenced in 2015, had been heavily involved in his local community at XX as well as involved in Wagga Wagga in community work. 

51. Norrish DCJ understood that all his community work had ceased once he was charged with the offences.  It is clear that he has worked for a number of organisations. Tendered before Norrish DCJ were multiple documents provided by the Rural Fire Service, indicating multiple courses and proficiencies that had been completed by the offender between 2002 and 2012.

52. A letter from the XX Bush Fire Brigade dated 2003, also indicated that the offender had been the captain of the XX Bush Fire Brigade and a letter of appreciation was sent to him in relation to his efforts within the brigade.  There were also documents from multiple community organisations, being certificates of appreciation, including local childcare centres, where it is apparent that the offender had attended as Santa Claus during Christmas celebrations. 

53. There are also a number of references from people who had known the offender for decades, indicating that he is very well regarded by persons who knew him well.  I note that those references were obviously provided in the earlier sentence proceedings and it is clear that none of those referees now have knowledge that the offender has now been convicted on a second occasion for child sexual assault offences.  In those circumstances, I am satisfied that they must be given some less weight, it may well have been that those persons were not prepared to provide those references, were they made aware of the current convictions. 

54. Notwithstanding that limitation, having regard to the very extensive community work that the offender had participated in, I am satisfied that he was a person of prior good character.

The remarks on sentence of Norrish DCJ

55. As I indicated, on 17 December 2015 the offender was sentenced to a total effective sentence of 3 years and 3 months with a non-parole period of 18 months in respect of the four offences that I have summarised on his criminal history.  The offender was found guilty after a jury trial. The four offences had occurred on the same day. Three offences the judge found were within minutes of one another.

56. The offending had occurred between 9 April 1999 and 10 April 2000 and the victim was the offender’s granddaughter who was 5 years of age at the time and was staying at the offender’s house.  There were three offences of indecent assault. The first offence involved rubbing of the victim’s vagina on the outside of her underpants. The second offence involved rubbing of the vagina on the inside of the underpants. The third offence was placing her hand onto the offender’s hand and moving it up and down his penis.

57. The sole count of sexual intercourse with a person under the age of 10 years related to digital penetration.  I note that importantly the offender, in accordance with the current law at the time, was sentenced in accordance with sentencing practices at the time and that is noted on transcript page 15 of the judgment, which is Exhibit 10. 

58. I pause at this stage to indicate that, since the time that the offender was sentenced for those offences, s 25AA, Crimes (Sentencing Procedure) Act has been introduced which commenced on 31 August 2018 and I will return later in my remarks to the effect of that section in due course.  Essentially, it means that the offender is now sentenced according to sentencing practices and patterns at the time of sentencing, rather than at the time of the offence. 

59. The offender appealed to the Court of Criminal Appeal on the grounds that the verdict was unreasonable and could not be supported by the evidence.  The appeal was dismissed, that is reported at MC v R [2017] NSWCCA 274.

Submissions of the parties

60. The Crown relied upon written submissions that were supplemented by further oral submissions.  Mr King on behalf of the offender also relied upon written submissions that were also supplemented by further oral submissions. 

61. I have taken those written and oral submissions into account in determining the appropriate sentence.

The evidence in relation to the health of the offender

62. Mr King on behalf of the offender relied upon various reports in relation to the current health of the offender (Exhibits 1 to 7) and also medical evidence tendered before Norrish DCJ (see Exhibit 11). 

63. In 2015, Dr Azab had stated as follows:

“[MC] suffers from multiple chronic illnesses:

A perforated peptic ulcer

Severe degenerative disease lumbar spine and has had laminectomy with no improvement

Neuropathy both legs affecting his mobility;

Prostate cancer

Atrial fibrillation complicated by heart failure

Fracture of the lumbar spine; and

Depression”. 

64. It was noted that at the time the offender was using a walking stick.

65. More recent letters from the offender’s medical practitioners indicate that he continues to suffer from severe neck and spinal pain. He underwent a hip and knee replacement surgery in 2019 and experienced fluid retention in his legs following the procedure. The offender still suffers from depression and is currently taking antidepressants. He suffers from severe osteoarthritis and still requires the use of a walking stick. He also suffers from urinary incontinence, heart disease, stomach ulcer and hypertension. 

66. Having regard to the available evidence, I accept that the offender has a number of health issues that, in combination with his advanced age, will mean that a custodial sentence is more onerous.  I also accept that his health has deteriorated since he served his last custodial sentence. 

67. The Crown, properly in my view, conceded during the sentence proceedings that the Court could take into account the offender’s health conditions.  In such circumstances, I do propose to moderate the otherwise appropriate sentence, having regard to the offender’s health issues and the fact that custody will be more onerous.

68. In addition to the offender’s health conditions, there is also evidence before the Court that the offender’s wife, C is also suffering from health issues.  C suffers from kidney, lung and liver cancer as well as a thyroid condition, depression and anxiety and hypertension.  The evidence establishes that this offender is the sole carer for his wife. 

69. It was conceded, on behalf of the offender, that exceptional hardship has not been established as that term is understood in R v Edwards (1996) 90 A Crim R 510. However, it was submitted that notwithstanding that exceptional hardship has not been established, the condition of the offender’s wife would weigh heavily upon him during his custodial sentence. The Crown during submissions conceded that the health conditions of the offender’s wife would also make his custodial sentence more onerous, given that he is ordinarily her carer. I also have taken that factor into account in determining the appropriate sentence.

Delay

70. It was submitted, on behalf of the offender, that delay between the reporting of the matter in 2013 until charging in 2016 and the further delay until the trial in February 2021 has caused prejudice to the offender.  Specifically, it was submitted that, had charges been laid in a more timely manner, then this trial could have proceeded at a time more proximate to the trial heard before Norrish DCJ, in respect of which the offender was ultimately sentenced in 2015.  It was submitted, on behalf of the offender that, had the offender’s matters proceeded to trial earlier and had there been a conviction, he could have been sentenced for all matters by Norrish DCJ. 

71. Mr King on behalf of the offender relied upon Porter v R [2019] NSWCCA 117 which outlines the general principles that are applicable when an offender has been sentenced for offending and then subsequently is sentenced for further offending after the completion of an earlier sentence. Mr King, on behalf of the offender, also relied on R v Blanco (1999) 106 A Crim R 303. The chronology that was prepared for the sentence proceedings (Exhibit 13) sets out the history of the proceedings.

72. I accept that there has been a lengthy delay between 2013, when the victim gave her police statement, and the charging of the offender on 19 July 2016.  I also accept that there has been a very lengthy delay between when the offender was committed for trial, that is 23 November 2016, and the ultimate trial date of 22 February 2021.  The chronology indicates that the delay, in large part, was caused by the Crown making application for tendency evidence to be led in the trial. 

73. Whilst I accept that the Crown was obviously entitled to seek to lead tendency evidence and that caused the vacation of two trial dates, it remains the position that the delay was not caused by the offender and I accept that there has been a very lengthy delay of approximately 4 years and 3 months between the date of committal for trial and the ultimate trial date.

74. Having regard to that delay, I am satisfied that it is a matter that must necessarily be taken into account in determining the appropriate sentence and I acknowledge that the Court must exercise some flexibility when an offender does come before the Court for sentence long after the date of the offending. I have had regard the principles in R v Todd (1982) 2 NSWLR 517.

75. In Porter v R, Hume J set out at length the general principles in relation to the question of totality where an offender has served a sentence and then, many years later, is sentenced for further offending.  His Honour noted at [51] that the issue of totality is relevant to the assessment of both the total term and also the non-parole period.  I have had regard to those principles in determining the appropriate sentence.

Totality

76. There is a further issue in relation to the question of totality and that is that I am dealing with the offender for two offences.  The general principle in relation to totality is that the Court must consider whether the sentence for one offence can comprehend and reflect the criminality of the other.  If so, the sentences should be concurrent but if not there should be some accumulation (see Cahyadi v R (2007) 168 A Crim R 41; NSWCCA 1).

77. Whilst both the Crown and Mr King on behalf of the offender submitted that the Court could properly make the sentences wholly concurrent because the offences were of the same nature, upon the same victim and in the course of one criminal enterprise over a short period, I indicated during submissions that I did not regard it as appropriate that the sentences be wholly concurrent. 

78. In my view, wholly concurrent sentences would not reflect the total criminality, given the separate and distinct sexual acts and also importantly the separate acts of violence that preceded each of the separate sexual acts. 

79. In those circumstances, I do propose to make the sentences partially cumulative. That will be notional because I do propose to impose an aggregate sentence.

Section 25AA, Crimes (Sentencing Procedure) Act

80. Section 25AA, Crimes (Sentencing Procedure) Act, which commenced on 31 August 2018, provides as follows:

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

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

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

81. In the Second Reading speech, the Attorney-General explained that the purpose of s 25AA is to “override the current common law rule that a court must apply the sentencing standards from the time of the offence”. He explained the rationale for the introduction of the provision as follows:

“In historical cases of child sexual abuse, this is resulting in lower sentences and discounts applied to reflect the leniency of sentencing for these offences in times past.  This perpetuates our past lack of understanding of how seriously these offences should be treated and our past lack of understanding of the significant impact they have on the victim.  The new provision will ensure that sentences meet current community expectations, to the extent possible, within the upper limit of the maximum penalty and from the time of the offence”.

82. Having regard to s 25AA, Crimes (Sentencing Procedure) Act, I have had regard to the trauma of the sexual abuse upon the victim as courts now understand.

Special circumstances

83. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the parole period and the non-parole period having regard to the hardship under which the offender will be required to serve his sentence and also because of the demonstrated rehabilitation and the delay occasioned in his prosecution.

84. In relation to hardship caused by the offender’s health and also because of the condition of the health of  the offender’s wife, I have moderated the otherwise appropriate sentence so I do not propose to find special circumstances on that basis. 

85. However, I do propose to make a finding of special circumstances, given that (in accordance with Porter v R) I have taken into account that, had the offender been sentenced at the same time as the 2015 offences, there would have been partial accumulation between all of the offences.  It is on that basis that I propose to moderate the non-parole period and also the total term.

Prospects of rehabilitation

86. It is submitted on behalf of the offender that he has demonstrated that he has good prospects of rehabilitation, particularly given his age.  I note that the most recent offending for which he was sentenced before Norrish DCJ occurred between April 1999 and April 2000 and there has been no further offending since that time, that is now a period of 21 years. 

87. In such circumstances, I am satisfied that the offender has reasonably good prospects of rehabilitation. This is particularly so given that he is now almost 78 years of age.  Also having regard to the offender’s advanced age and his poor physical health, I am satisfied he is unlikely to reoffend. 

88. The Court was advised that the offender no longer has any contact or access to children.

Determination

89. In determining the appropriate aggregate sentence, I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act. 

90. In respect of each offence, pursuant to s 5(1), Crimes (Sentencing Procedure) Act, I am satisfied that no penalty other than imprisonment is appropriate.  I have had regard to the objective gravity of each offence, the prescribed maximum penalties and the offender’s subjective circumstances. 

91. As I indicated, I do propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act. 

92. Pursuant to s 53A(2)(b), the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence are as follows:

• In relation to Count 2 (sexual assault (category 3), person under 16 years of age) - A total term of 2 and a half years; and

• In relation to Count 4 (sexual assault (category 3), person under 16 years of age) - A total term of 3 and a half years.

93. MC, in relation to each offence, you are convicted. 

94. I sentence you to a total aggregate sentence of 4 years and 6 months to date from 1 April 2021 and expire on 30 September 2025 with a non-parole period of 2 years and 3 months, to date from 1 April 2021 and expire on 30 June 2023. 

95. You will first become eligible for parole on 30 June 2023. 

96. I have found special circumstances and I have varied the statutory ratio between the non-parole period and the parole period. 

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Amendments

22 June 2021 - Case name changed.

Decision last updated: 22 June 2021