R v McIver

[2019] NSWDC 834

District Court

New South Wales

Medium Neutral Citation:	R v McIver [2019] NSWDC 834
Hearing dates:	5 August 2019 – 19 August 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Criminal
Before:	N Williams DCJ
Decision:	Sentence – Imprisonment – Aggregate Sentence – 9 years 6 months – Non-Parole Period of 5 years 8 months 28 days – Indicative Sentences – 2 years (count 2), 2 years 3 months (count 5), 5 years (count 8), and 6 years (count 10).
Catchwords:	Sentencing; Historical child sexual assault; Bexley Boys Home; Buggery; Indecent Assault
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Amendment (Sexual Offences) Act 2008 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	R v Ronen [2006] NSWCCA 123 R v Kay [2004] NSWCCA 130 R v Pickard [2011] SASCFC 134 Giourtalis v R [2013] NSWCCA 21 Hurst v R [2017] NSWCCA 114 Elchiekh v R [2016] NSWCCA 225 R v PDM [2008] 187 ACR 152 GAT v R [2007] NSWCCA 208 R v Smith (1987) 44 SASR 587 R v Zerafa [2013] NSWCCA 222 R v Stoupe [2015] NSWCCA 175 Gore v R, Hunter v R [2010] NSWCCA 330 R v Lord [2013] NSWDC 16 SM v R [2014] NSWCCA 137 Magnusson v R [2013] NSWCCA 50 Sabra v R [2015] NSWCCA 38 McKittrick v R [2014] NSWCCA 128 Coles v R [2016] NSWCCA 32 Hili and Jones v R [2010] HCA 45 Brown v R [2014] NSWCCA SS v R [2016] NSWCCA Scook v R [2008] WASCA 114 R v MAK, R v MSK [2006] NSWCCA 381
Category:	Sentence
Parties:	Regina (Crown) John Dalziel McIver (Accused)
Representation:	Counsel: Mr K. Gilson (Crown) Ms L. McSpedden (Accused)   Solicitors: Ms J. Yates (Crown) Mr E. Rowe (Accused)
File Number(s):	2016/00326970, 2017/00172183
Publication restriction:	Non-publication order as to the names of the complainants and other witnesses who were residents of the Bexley Boys’ Home save for Trevor Hubbard and Ian Hubbard.

Judgment

1. The offender John Dalziel McIver pleaded not guilty to an indictment with one count of assault occasioning actual bodily harm with the victim AM; five counts of indecent assault, one for AM, two for GW, one for DC and one for CN; one count of common assault for CN; one count of buggery for CN with an alternate count of indecent assault; and one further count of buggery for CN.

2. After a trial by judge alone the offender was found not guilty by way of directed verdict with respect to three counts of indecent assault being counts 3, 4 and 7.

3. The offender was found not guilty by me as trial Judge sitting in a judge alone trial on counts 1 and 6, counts of assault occasioning actual harm and assault respectively.

4. He was found guilty by me of counts 2, 5, 8 and 10, which I will set out below. The offender now comes before the Court to be sentenced with respect to those counts.

5. Count 2 read that between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales he did assault AM, a male, pursuant to s 81 of the Crimes Act 1900.

6. The particulars of count 2 were that the offender made AM bend over in the shower area and grabbed AM on the buttock cheek.

7. Count 5, that between 6 July 1973 and 5 December 1973 at Bexley in the State of New South Wales, the offender did indecently assault DC, a male, pursuant to s 81 of the Crimes Act 1900.

8. The particulars of count 5 were that the offender made DC bend over and part his buttock cheeks, telling him that he was examining him for worms. The offender then moved his hand over DC’s anus.

9. Count 8, between 17 July 1968 and 15 January 1978 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales he did commit an act of buggery with CN pursuant to s 79 of the Crimes Act 1900.

10. The particulars of count 8 were that the offender inserted his penis into CN’s anus in the officer’s cottage.

11. Count 10, between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales he did commit an act of buggery with CN pursuant to s 79 of the Crimes Act 1900.

12. The particulars of count 10 were that the offender inserted his penis into CN’s anus in the locker area of the Boys’ Home.

MAXIMUM PENALTIES

13. The offences pursuant to s 81 of the Crimes Act carry a maximum penalty of five years imprisonment. The offences pursuant to s 79 of the Crimes Act carry a maximum penalty of 14 years imprisonment.

14. The maximum penalties confirm the seriousness of these offences and the imposition of the maximum penalty is reserved for matters that fall into the worst category.

15. The gravity of any offence is to be assessed by reference to its objective seriousness.

IDENTIFICATION OF MATERIAL TENDERED ON SENTENCE

16. The Crown tendered a sentence bundle including a cover sheet, a copy of the indictment as well as the criminal and custodial histories of the offender. Written submissions were made on behalf of the Crown;

17. The defence case included a report from Dr Sally McSwiggan dated 4 November 2019; two reports from Dr Gregory La Hood dated 18 August 2019 and 15 October 2019; career cards and dossier with respect to the offender’s career within the Salvation Army and 14 written references. Written submissions were made on behalf of the offender.

18. Both Ms Knowles for the Crown, and Ms McSpedden for and with the offender, supplemented their written submissions with oral submissions.

CRIMINAL HISTORY

19. The offender has no record of previous convictions. This is to his credit and contributes to his prospects of rehabilitation.

TIME IN CUSTODY

20. The offender has served time in custody since 13 September 2019 for these matters. I confirm that I have taken this time in custody into account by backdating the sentence to commence on that date.

NOT GUILTY PLEA

21. The offender pleaded not guilty to each count in the indictment. He was found guilty with respect to counts 2, 5, 8 and 10. He is not to be penalised for that plea. He was entitled to defend the charges. Nonetheless, he does not receive the benefit of any discount that might otherwise apply should he have admitted his guilt.

22. Similarly, he is not to be penalised or criticised for any absence of contrition or remorse. The simple situation is that he denied his guilt and he maintains such denial to date. He is not to be penalised for that stance.

FACT-FINDING ON SENTENCE

23. In accordance with my judgment of 13 September 2019 in which I gave extensive written reasons for the findings of guilt made with respect to counts 2, 5, 8 and 10, I propose to find facts for sentence in accordance with those earlier facts which supported the findings of guilt.

24. It is against this background that the offender denies his guilt with respect to the offences that are before the Court for sentence.

25. The offences occurred in a period of time from July 1968 until January of 1974 when the offender, was for to discrete periods, a member of staff at the Bexley Boys’ Home. The Bexley Boys’ Home was run by the Salvation Army. It provided accommodation for up to 100 boys aged between five and about 16 years.

26. The resident boys were either generally Wards of the State or had been left in the care of the Boys’ Home by their family as they were unable to look after them. The Court was informed that resident boys were referred to as “inmates”.

27. The offender was posted to the Bexley Boys' Home for two periods, the first one commencing on 18 July 1968 and finishing on 14 January 1971, and a second period which commenced on 20 January 1972 and finished on 17 January 1974.

28. During his employment at the Bexley Boys' Home, the offender was provided with accommodation in the Assistant Manager’s cottage located within the grounds of the Boys’ Home. Those premises comprised a two bedroom cottage situated close to the main building and dormitories of the Boys’ Home.

29. The facts of each charge are as follows;

Count 2:

30. AM gave evidence about an incident with the offender which occurred in the shower area giving rise to count 2. AM gave evidence that he was touched on the bottom by the offender. This occurred on a weekend, in particular on a Saturday. He was around eight years of age. AM had received word that his father was coming to see him. His father was visiting outside of the usual visitors’ routine because AM’s brother was in hospital.

31. AM was told by the offender to have a shower and get dressed in his khakis. He had been reluctant to leave playing but when he was told he was going to see his father he was excited, hoping that there would be good news in that he was going home.

32. At around 1.30 or 2 o’clock in the afternoon AM was alone in the shower area before the offender turned up. The offender had left the room and returned.

33. The offender told AM to step forward and turn around. When AM was showering the offender touched him on the bottom. He said, “As I’ve come forward in the shower I was told to turn around and bend over. I was touched.”

34. The touch startled him. It was like a grab, just a grab on the backside with the right hand side of his cheek buttocks being touched by the offender. When AM was touched on the bottom, Major Morton walked past the doorway near the shower accompanied by a lady and another gentleman. He believed that was why the situation stopped. That was the only time it ever happened.

35. AM was petrified and did not say anything at the time, nor did he say anything to anybody after it had happened.

36. He said that he told his brother a couple of days later but was ashamed to actually say anything. He just told his brother that he had been touched on the bottom by the offender. He said that his brother did not say anything in response to that and that was the end of the conversation.

Count 5:

37. This incident occurred after the trip that DC had made to West Wyalong on a Rotary program. Generally DC would not be with the boys on a Sunday because of his involvement with the church.

38. On this particular occasion Mr and Mrs Morton had another engagement which precluded them from taking him back to the evening service at the church. He was therefore in the shower with the other boys and the offender,

39. On Sunday there were less staff and fewer boys at the boys’ home. He was preparing to go into the showers and was naked in the locker room waiting to be called into the shower area. The boys were showering. Some boys were towelling off, others were showering, four boys at a time.

40. On this occasion DC was the only one called through. He recalled being called up by the name xxxxxxx - and I note for the record that name is suppressed - which was how he pronounced his name at that time. More recently he explained he had adopted the traditional Irish pronunciation of his surname with a letter being silent.

41. The offender said, “Come here, bend over.” He was told to part the cheeks of his bottom. The offender who was behind him said, “You’ve got worms.” DC felt a brush of a hand followed by a prodding of his anus area.

42. DC reacted and said to the offender, “Are you having your jollies there? Are you a poofter?” This response from DC drew laughter from the older boys.

43. The offender told DC, “Get to the office,” which he did. He was dressed in his pyjamas and dressing gown. He sat on a chair in the office area in the vestibule for a long time in the dark. He was very nervous and started sucking on his upper arm which caused bruises.

44. Eventually the offender said to DC, “I have every right to cane you.” DC replied, “I don’t know what you’re going to do to me but I’ll be telling everyone at Rockdale what you’ve done.” With that the offender told DC that he had to pretend to have been caned whereupon DC went back to the playroom having escaped punishment.

Count 8

45. CN was mucking around in the out of bonds area of the grassed area near the offender’s quarters. He was not allowed to be there. It was daylight. The offender took him down to the officer’s quarters.

46. The offender was dressed in his normal white shirt and black pants. They went into a room. In one of the rooms there was a desk, a dresser, a set of draws, a cot or a bed. The offender told CN to face the wall. He did as he was told. The next minute he “just felt some shooting pain in my behind”. He was wearing his play clothes which were taken down to his knees. He then felt a sharp pain in his rear end. The next minute he turned around. He uttered “a few obscenities and took off out of the room”.

47. He was pulling up his pants as he was going. He felt “a sharp ripping pain in his bum”.

48. He panicked and fled. He pulled up his pants as he went. He yelled abuse at the offender. He then hid under the pavilion.

49. He noticed blood spots on his underpants and in the following days his bottom was sore. He did not tell anybody about what happened to him. He described feeling pressure in his bottom.

Count 10

50. CN had been in the locker rooms looking to see what he could steal. The offender came in. CN tried to hide behind the lockers. The offender grabbed him by the arm and they were standing chest-to-chest.

51. The offender turned CN around to face the locker. The offender penetrated CN’s anus which CN described as the offender “stuck his dick in my bum, he just moved his pelvis”.

52. It seemed to last for an “eternity”. He was then told to get out. His bottom was sore and had a spot of bleeding.

A VICTIM IMPACT STATEMENT

53. A victim impact statement has been provided by the victim AM. He described the incident of abuse as changing his life forever.   The victim impact statement speaks of the loss of innocence occurring that day as a result of the offence. It detailed the ongoing lifelong consequences including flashbacks which caused him anxiety, depression, emptiness, a sense of worthlessness and loneliness.

54. As a child he lived in fear of the offender who was in a position of power wherein the victim had no control.

55. AM said that he bore psychological and emotional scars from this event which caused him to be emotionally detached. He developed responses such as anger and trust issues as well.

56. The victim impact statement reports that AM developed sleeping difficulties and memories which he could not erase. In turn he sought escape in drugs and alcohol which did not resolve the problems but only made them worse.

57. AM said that the emotional trauma was deeply embedded and was with him forever.

58. The victim impact statement provides insight into how this offence impacted upon the victim. I take the statement into account but make it clear I have done so not to aggravate the offender’s culpability or indeed the sentence to which he is justly exposed but to mark the appalling impact this has had upon the victim. It provides a compelling reminder of what follows for victims after being exposed to such criminal offending.

59. There is no medical or psychiatric evidence against which to assess the subjective material from the victim. Accordingly his outcomes as described fall within that which one might expect from such conduct.

RECORD AND PREVIOUS GOOD CHARACTER

60. The offender is now 80 years old. These offences occurred when he was aged between 29 and 35 years of age. He has no previous convictions. He has no matters of sexual impropriety or otherwise violent or offensive conduct. He is thus a man of previous good character and this is to his credit.

61. Whilst his good record and previous good character contribute to his prospects of rehabilitation they carry less weight in offences of this nature. I will make reference to further submissions made by the parties with respect to the use of good character below, particularly in the context of good character which enabled the offending to have occurred.

GENERAL SENTENCING PRINCIPLES

62. Section 3A of the Crimes (Sentencing Procedure) Act of 1999 provides that the purposes for which a court may impose a sentence on an offender are as follows.

1. To ensure that the offender is adequately punished for the offence;

2. To prevent crime by deterring the offender and other persons from committing similar offences;

3. To protect the community from the offender;

4. To promote the rehabilitation of the offender;

5. To make the offender accountable for his or her actions;

6. To denounce the conduct of the offender;

7. To recognise the harm done to the victim of the crime and the community.

63. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that “A court should not impose a sentence of imprisonment unless having considered all possible alternatives finds that no other sentence is appropriate”.

64. Given the maximum penalties, the nature of the offending, the objective seriousness of the matters before the Court and the need for general deterrence, clearly no other sentence than a sentence of imprisonment is appropriate. No contrary submissions were made save for the fact on count 2 on behalf of the offender.

STATISTICS

65. I have considered the statistics for these types of matters and have taken them into account.

66. I note, however, that the higher courts have referred to statistics as variably a blunt instrument and an opaque tool. They may serve as a yardstick against which to assess the proposed sentence and I take them into consideration but they do not define the outer bounds of permissible discretion. See Barbaro v The Queen (2014) 253 CLR 58.

67. I am mindful as to the use of those statistics conformably with decisions such as Hili and Jones v R [2010] HCA 45, Brown v R [2014] NSWCCA at 215, particularly Garling J, and more recently in SS v R [2016] NSWCCA at 197.

68. I turn now to the offender’s subjective features.

69. The offender’s subjective features have been comprehensively detailed in the report of Dr Sally McSwiggan dated 4 November 2019; the two reports of Dr Gregory La Hood dated 19 August 2019 and 15 October 2019; the career cards and Salvation Army dossier of the offender’s career at the Salvation Army; and the 14 references which I will deal with below.

70. I turn firstly to the psychological report. I have received a report which is a part of exhibit A under the hand of Dr Sally McSwiggan dated 4 November 2019.

71. Dr McSwiggan noted that the offender had been retired and lived with his wife in Richmond on the aged pension. She understood him to be 82 years of age.

72. The offender was polite and cooperative and she found him to be a good historian.

73. The offender was the eldest of five children raised on a farm near Kempsey, New South Wales. The offender had a stable and happy childhood with no abuse or neglect. His parents were members of the Salvation Army which influenced his own career choice and that of most of his siblings. His family were active in the community through the Salvation Army.

74. The offender attained the Leaving Certificate and qualifications in Agriculture while working on the family farm.

75. When 21 years of age the offender entered theological college and was ordained as a Minister of Religion in the Salvation Army. He married in 1962 and there were three adult children as a result of that union, ten grandchildren and eight great-grandchildren who remain supportive of him and visit him regularly whilst in custody.

76. During his career as a Salvation Army minister the offender ministered in regional New South Wales and Queensland for ten years, completed a certificate in Child and Social Welfare to provide reports and treatments as a family counsellor for nine years, was Director of Social Services for the Salvation Army in the Newcastle/Hunter region, was Director of the Homeless and Drug and Alcohol Services in New South Wales and the ACT and Divisional Social Services Western Sydney and Regional New South Wales for ten years. He remained with the Salvation Army until he retired in 2004.

77. The offender denied a history of psychiatric treatments, hospitalisation in a psychiatric facility or links with community health services. He denied a history of psychiatric medication. The offender said his childhood was trauma free and his marriage and family life were stable and happy.

78. His work with the Salvation Army had given him insight into mental illnesses and he did consider he had experienced symptoms.

65. The offender reported a history of chronic heart disease with cardiac surgery to treat a blockage and arrhythmia. The offender had a stroke about two years ago and while most of the symptoms had resolved, nonetheless the offender considered that his working memory was now insufficient. He said that it was now more difficult to sustain concentration and attention over time as opposed to before the stroke and he now became tired more easily.

66. The offender reported a history of intermittent hypoglycaemia and fainting episodes. He was worried about a reduction in his balance and considered himself to be at risk of falling in the shower. He was prescribed medication for blood pressure and anticoagulants to reduce the risk of stroke.

67. Dr McSwiggan referred to the medical discharge of the offender from Nepean Hospital dated 8 September 2017. The offender had presented to Emergency on 1 September 2017 with left-sided weakness. Scans showed an acute right middle cerebral artery infarct, being a clot, for which he underwent successful clot treatment that same day.

68. Dr McSwiggan also reported having access to Dr La Hood’s reports referring to the offender’s medical history of chronic heart disease, the insertion of stents, treatment for atrial fibrillation, urinary urgency, hypoglycaemia, occasional vasovagal reactions being fainting and treatment for deep vein thrombosis. The offender was regularly reviewed by his general practitioner and three specialists.

69. The offender denied a history of sexual interest in prepubescent or pubescent children.

70. As noted above was cooperative with Dr McSwiggan and reported his mood as being good. His appetite was normal.

71. He did routine regular exercise whilst in custody. His thought content was logical. He did not appear clinically depressed and denied thoughts of harming himself or others.

72. Based on the interview, and noting that condition was not formally assessed, Dr McSwiggan formed the view that the offender presented with above average intellectual skills, showing no deficits indicating the need for formal cognitive evaluation. His vocabulary was sophisticated indicating a level of academic education and his ability to provide a detailed history showed organisation of remote and recent memory. He showed flexible and abstract thinking.

DR MCSWIGGAN’S OPINION

87. Dr McSwiggan opined that the offender presented as cognitively intact and high functioning. He was a detailed historian. The timely surgery after his stroke had contributed to the positive outcome after that cerebral event.

88. He reported residual symptoms of declining concentration and working memory and consistent with those symptoms were the MRI findings of “mild local mass effect at the side of infarct in the right frontal lobe” and chronic micro vascular ischemia in his brain likely due to the chronic heart disease.

89. The offender did not present with symptoms of major mood disorder or major mental illness. He reported that his moods had not deteriorated significantly and showed no symptoms consistent with disordered thought. He said he had been adjusting to custody over the last seven weeks up until the date of the author’s report and maintained activity, appetite and establishing a routine.

90. The offender’s advanced age and conditions of aging will likely impact on his time in custody. He reported standing up for three hours if locked in the yard as there was inadequate seating for 80 inmates. This offender said he could not get back up if he sits on the ground. He is concerned he will faint in the heat in addition to falling in the showers given there were no handrails.

91. The offender has the ongoing support of his family and presents intellectually functioning in the above average range. He would likely be able to fulfil roles in education in custody or being encouraged to return to self-study so he can have goals and a time diversion.

DR LA HOOD’S REPORTS

92. There were two reports dated 19 August 2019 with attachments, and one dated 15 October 2019 from Dr Gregory La Hood before the Court describing the offender and his wife’s present health situations.

93. Dr La Hood had been their long-term treating general practitioner and was aware of a number of their present health complaints.

94. The offender has, for the past 30 years, suffered from ongoing chronic serious heart disease for which he was taking medication and was under the care of a cardiologist. His condition required constant monitoring and he was at risk of further vascular complications. He has had an angioplasty with stents, most recently in 2012; cardioversion twice and catheter heart rhythm ablation.

95. On September 1 2017 the offender collapsed with a major stroke and was taken to Nepean Hospital. He underwent successful surgery for removal of the clot at Liverpool Hospital that same day.

96. Dr La Hood said that that event had left him with brain damage and ongoing symptoms. He was at risk of further stroke from either a clot or a cerebral lesion and remained under the care of a neurologist.

97. The offender also suffers from prostatic bladder obstruction causing feelings of urgency with respect to passing urine. He also had precancerous polyps which required periodic colonoscopy and adherence to a high fibre diet.

98. He also suffered from skin cancers which required regular removal, hypoglycaemia needing to ingest food or fluids regularly, and occasion vasovagal reactions, needing to keep active as a result.

99. The offender was prescribed Pradaxa to minimise the risk of further strokes and Irbesartan for blood pressure management.

100. The attachment for this report detailed the offender’s admission and treatment for the stroke referred to.

REFERENCES

101. As noted above, I have received some 14 references with respect to the proceedings. Hazel McIver wrote a reference dated 22 October 2019. Mrs McIver has known the offender for over 60 years, having first met him in January 1957. They have been married for some 57 years and have had a fulfilling and meaningful life together, being parents, grandparents and great grandparents.

102. Mrs McIver said that their life together had been very fulfilling as they ministered together and shared their love for people less fortunate than themselves. She tells me of her distress when she thinks of the offender’s custodial situation.

103. Mrs McIver said that the offender is an absolute gentleman and that they will always be best friends, lovers and soul mates. The offender was a wonderful father and was loved by all family members. The offender’s incarceration had affected her health and wellbeing and her day-to-day functioning. She believed the offender to be a good and upright man and she was prepared to stand by him one hundred per cent.

104. The offender’s son, Ian McIver, who tells me he is a captain in the Maitland Salvation Army Corps, provided a reference dated October 30 2019. Mr Ian McIver is the offender’s eldest son and has been present with his parents and family throughout the criminal justice process over the last few years.

105. Whilst not being able to accept that the offender is guilty, Mr McIver tells me that these acts are totally out of character for his father and did not fit with the lifestyle the offender had led. He had been guided by his father’s example and wisdom. He knew his father to have a strong sense of what is right and had fought injustice tirelessly on behalf of others.

106. Mr McIver tells me that his parents and all Salvation Army officers including him have given their lives to fighting injustice wherever they find it, fighting for those in our community who cannot fight for themselves. He sees his father’s and mother’s pain caused by his father’s custodial status which has negatively impacted both of them physically and mentally and emotionally.

107. Ms Narelle Rozzoli has prepared a six page reference which of course for present purpose I cannot do justice to. Nonetheless, she asked me to consider the effect of the offender’s incarceration on him being an 80 year old man with health issues, its effect upon her 83 year old mother and on herself and her family.

108. Ms Rozzoli writes that her father is her idol and she always looked up to him. He is the backbone of their family and their mother’s rock. She was particularly close to her father. He is much more than a minister of religion; he has been a manager of staff and facilities with qualifications in social work, apart from religion. He works within the Court system to support people of various walks of life and has been a marriage guidance counsellor.

109. She tells me that he is a man who is always been held in high regard and respected within the community. Her parents opened their home to people in need and gave me an example of how they provided additional support for her own children.

110. Ms Rozzoli tells me that her father was a leader and had an authoritative style. She believed that her own parenting and teaching styles were reflective of the model that she had inherited from her father.

111. She believes that the time and diligence she puts into her own work and the honesty and integrity with which she conducts herself were not intrinsic but reflected how both her parents had raised her.

112. Ms Rozzoli did not attend court because the offender had asked her not to. He wanted to protect his family members from the media intrusion and the impact that the trial has had on their lives, the situation that the offender had found himself in having played out in front of the wider church community, their friends and neighbours.

113. Ms Rozzoli had to inform her own supervisors so that they could understand the situation that she found herself in. She said that after her father was convicted people turned up on their doorstep and they were inundated with offers of assistance.

114. Ms Rozzoli proposes to cut down on her own working days each week so that she can assist her mother to visit the offender in custody as the amount of travel involved was tiring and emotionally draining.

115. She tells me of the impact that this process has had on her mother visiting the offender in custody. Ms Rozzoli tells me that her parents are very much a part of her day-to-day life as they live in a dual occupancy dwelling. She wanted to do this because of the selfless way that her parents had provided for her and that her parents had earned such a paltry amount during their working life with the Salvation Army.

116. When the offender was living in their shared dual occupancy dwelling, he made financial contributions to the household. Since he has gone into custody he was unable to make those financial contributions to the family. This in turn will affect the overall household.

117. Ms Rozzoli tells that both of her parents were in remarkably good health for their age. However, two years previously the offender had a very serious stroke but had managed to make an amazing recovery.

118. The offender had heart issues for over 30 years with some stents being put into heart valves.

119. Her parents kept themselves healthy because they worked at it, walking every day and keeping themselves socially and mentally stimulated.

120. Ms Rozzoli tells me that the trial process had caused her parents to age rapidly. Their thought processes were now not as quick, becoming prone to mental blanks and muddling up or repeating details. They did not appear to be as sure-footed and steady in their movements.

121. Her mother is very emotional and while trying to maintain a brave face, often needs to be consoled.

122. Ms Rozzoli tells me she has grave fears for her parents if the offender receives a lengthy sentence. For older people their mental wellbeing is closely linked to their physical wellbeing. She believes these current events will shorten both of her parents’ lives.

123. Ms Rozzoli asks me to take these matters into account when I am considering any sentence that I do impose as it may well be a death sentence for the offender.

124. Mr Brad McIver provided a reference dated 25 October 2019. He tells me that for his entire life he has been the son of Salvation Army officer parents. Throughout his entire life he had observed the offender to be a man of the highest moral standard and professional calibre. Even given the most trying circumstances and conditions which others would not tackle, the offender had conducted himself with the utmost level of care and diligence to whatever role the Salvation Army had asked of him.

125. In all the circumstances Brad McIver tells me that the offender has proven himself to be loving and caring father, husband and grandfather. He tells me that the offender is selfless in giving not only to his family but to the Australian community over decades, even while defending these allegations and being under the microscope of public opinion by the Royal Commission, the offender had been inspirational.

126. He says whilst the impact on himself, his wife and children through the public scrutiny had been significant, the impact of those factors on his mother was almost unbearable to watch.

127. The offender is a man who is held in the highest regard by all who have known him. He was a leader in his community, respected in Rotary and until recently involved in his local church. He also tells me that the offender had provided significant care to his mother over many years and that it was critically important that he be allowed to continue to do so as the absence of the offender in his mother’s life had a significant negative impact on her.

128. Lester John Vincent, in a letter dated 20 October 2019, tells me that he had known the offender and his wife Hazel for almost 11 years. He had become very good friends with the offender and had much in common with him. Mr Vincent tells me that due to the nature of the offender’s duties having to deal with tough juvenile inmates it is very likely that some could have harboured strong feelings against him.

129. The offender is highly respected within the congregation and has been asked to speak at one of their men’s breakfast. He was shocked to hear of the offender’s arrest. The congregation continues to be supportive of the offender.

130. In spite of the Court’s verdicts on these counts, nonetheless Mr Vincent will continue his friendship with the offender. The offender is a highly respected, much-loved husband and patriarch to his family, several of whom have followed him and his wife into the Salvation Army ministry. This, Mr Vincent tells me, is the measure of the man he knows.

131. Mary Anne Robinson in a letter dated 30 October 2019 has known the offender since the early 1990s. She worked with the offender for about three years when she worked as a Director of Nursing at the Barrangiri Aged Care Crisis Centre in Canberra. The offender was the manager of that facility.

132. She found him to be a person of considerable integrity, committed to achieving improvements to systems and processes that resulted in better experience for carers and made significant improvements to staff support. She believed that he was always fair and honest and they spent their weekends involved in community work.

133. She believes that the offender was held in high regard by the staff at the centre, by his colleagues and by others in the community sector. She found that the crimes that he had been found guilty of to be totally out of character for the person she knew who displayed the integrity and was so well regarded.

134. Denise Aslin, in a reference dated 29 October 2019, said that she was a very close friend of the offender and his wife since 2003. She had been closely involved with the criminal justice process that the offender found himself in.

135. Ms Aslin tells me that the offender is a good human being, a gentleman, honest, kind and totally committed to his work with the Salvation Army. She tells me that the trauma of his convictions and subsequent incarceration has had a significant toll on the McIver family. It was particularly hard for Mrs McIver having to drive to and from Silverwater prison.

136. Vicky Banfield, in a reference dated 30 October 2019, tells me that she first met the offender in September of 1987 when she was employed as his administrative assistant. This resulted in a long-term friendship. The offender performed her wedding ceremony and that of her daughter’s and also the dedication service for her grandchildren and funeral for her father.

137. She is aware of the charges upon which the offender was found guilty. The offender is a man of absolute integrity, always liked by his associates. He would work alongside others, chatting, listening to their problems and offering advice. He encouraged men in less fortunate situations to pursue a better lifestyle.

138. She has the utmost respect for the offender and sees the offender as a man who spent his life serving others.

139. The Reverend Eric Stephenson tells me in a letter dated 17 July - I think that is 2019 - that he has known the offender since 1979 when he had applied for accreditation as a counsellor. After acceptance and training he was accredited in 1983.

140. The firm, of which Mr Stephenson was a founder and director, operated under the government’s strict selection training and supervision regime which gave intense scrutiny to the character and suitability of counsellors before their selection confirmation.

141. Mr Stephenson tells me that the offender performed his duties as a counsellor with UNIFAM in a fully professional and trustworthy manner.

142. Anthony Rozzoli, the offender’s son-in-law, provided a reference dated 21 October 2019. He had first met the offender in 1985 and had known him for 34 years. Anthony Rozzoli is married to the offender’s daughter Narelle and they have three adult daughters.

143. Mr Rozzoli tells the Court that the offender is not only his father-in-law but like a father and his best mate. They shared a number of common interests. He found him to be an honest, caring and respectful man. He had seen him over many years interacting with hundreds of people and he had never seen anything which could make him doubt his morality. The impact of the offender’s incarceration had turned their world upside down.

144. Gabi Rozzoli, the offender’s granddaughter, has written a reference dated 23 October 2019. The offender was closely involved in her life. The offender is a man who does everything in his power to help people and goes above and beyond to do so.

145. The offender provided her help with some health issues that she had confronted and supported her with his wisdom and encouragement.

146. Ms Rozzoli tells the Court that as a result of the offender’s conviction dealing with that was a struggle every day.

147. Her health issues, which had been relatively under control, had returned worse than ever after the offender’s incarceration and she was required to return to a full dose of medication that she was prescribed.

148. Melia Rozzoli is another of the offender’s grandchildren. In a letter dated 26 October, Ms Melia Rozzoli informs the Court that the offender has been very closely involved in her upbringing. He would help her with her schoolwork. She has spent a lot of time in his company and enjoyed a particularly close and loving relationship with him.

149. Ms Melia Rozzoli is presently studying a Bachelor of Social Work and was completing a compulsory placement at Parklea Correctional Centre. She found this very “triggering” as she was reminded that her grandfather was now an inmate in the custodial facility.

150. Ms Melia Rozzoli could not accept the verdict with respect to the findings of guilt. She described the ongoing effect on her family as deeply disturbing with respect to the financial and emotional burden. She was having nightmares.

151. She was concerned about the offender’s mental and physical health and that of her grandmother.

152. Timothy Rozzoli has provided a reference dated 21 October 2019. He is the offender’s grandson. He described the offender as a caring and a significant family member who took an interest in everyone’s life and was the first to offer advice or helping hand. He was very close to the offender.

101. The offender provided great assistance to the author when his other grandparent died, offering grief counselling in a way of practicing mindfulness. He described the offender as respectful, caring and selfless. His incarceration had caused the author’s grief to worsen which had further unsettled him.

102. The offender’s daughter-in-law, Joyceline McIver, provided a reference dated 25 November 2019. She described the offender as like a father to her for the past 34 years. She learned from her parents-in-law how to be a good wife, mother and friend.

103. She tells me that she feels safe with the offender, would have no hesitation in leaving her children with him and that each of her children had spent significant amounts of time in her parents’-in-law care. She described a safe and trusting relationship with the offender.

104. She described the reaction to the offender’s incarceration as causing sleep disturbances and nightmares. She had to help her own children deal with the offender’s incarceration. She was also concerned for the offender’s health and that of her mother-in-law as well.

SUBMISSIONS BY COUNSEL

Crown submissions:

157. The Crown submits that for all offences at the relevant time, the sections included reference to consensual activity between consenting adults. Accordingly, any non-consensual nature of the offending such as is before the Court increases the objective seriousness.

158. Similarly, the fact that the victims were children also increased the objective seriousness, being mindful of course not to double-count when it came to the aggravating factors of the victims being vulnerable.

159. The Crown submitted that it was clear from the evidence that the victims were not consenting or at the very least being forced to submit and their feelings on the matter were completely disregarded.

160. The Crown submitted that with respect to count 8, it would have been apparent from CN’s reaction to the act of buggery that the offender had caused pain which he disregarded. The Crown submits that the offending behaviour is aggravated by that.

161. The offence was committed in the home of the victim pursuant to s 21AEB of the Crimes (Sentencing Procedure) Act 1999, that the offender abused the position of trust or authority in relation to each victim pursuant to s 21AK of the same Act, and that the victims were vulnerable as they were “inmates” in a Boys’ Home and were children.

162. It is noted that none of the offences have an age element. AM was the youngest victim at eight to 11 years of age, followed by CN at eight to 14 years of age and DC at 14 years of age. The degree of their youth affects the degree to which the aggravating feature is present.

163. With respect to count 2, being the count pursuant to s 81 of the Crimes Act, the indecent assault of AM, this offence involved grabbing the victim on the buttock cheek in the shower. The Crown submits that at around the same time Major Morton and two other people walked past the shower room door near the locker room.

164. It was submitted that although the contact was brief, the offender ceased what he was doing when others were nearby. It is not the case that the offender, having insight into his own offending behaviour, stopped of his own volition.

165. The Crown reminded the Court that none of the offences have abuse of trust or authority as an element of the offence.

166. The Crown submitted that taking into account all of the circumstances, and the matters noted above, count 2 fell into the midrange of objective seriousness.

167. Count 5 on the indictment was a charge of indecent assault with respect to DC. The Crown submitted that the facts included the offender prodding around the anus of the victim, stating that he had worms in the presence of other boys, the victim verbally reacting to this and being told to go to the office where he waited in the dark for a long period of time before the offender arrived. The victim was very nervous and started sucking on his upper arm causing some bruising.

168. The Crown submitted that it was relevant to the objective seriousness that this offence had an aspect of humiliation and belittling of the victim. This was because it was committed in the presence of others. There were four boys under the shower and a number of boys were towelling off.

169. The Crown submitted that this incident was an attempt by the offender to humiliate DC in front of older boys. The humiliation was part and parcel of the offending indecent act and was accordingly inextricably bound to it. Moreover, DC was forced to wait for some time in a darkened office where his nerves were such that he was causing bruising on his upper arm.

170. The Crown submits that the victim’s anxiety was not short-lived or confined to what had happened in the shower room. His anxiety continued while waiting in the darkened room and accordingly this increased the objective seriousness of the offending behaviour.

171. The Crown submitted that with respect to count 5, the objective seriousness falls just above the midrange.

172. With respect to count 8 on the victim CN, which was a charge pursuant to s 79 of the Crimes Act being an act of buggery, the Crown submitted that at the time of this offence the victim felt a sharp pain or ripping pain in his anus caused by the offender’s penis. The victim reacted immediately, turning around, saying a few obscenities and taking off out of the room.

173. He saw blood on his underpants and felt soreness in his anus area in the following days. The victim was penetrated suddenly and without warning, no doubt contributing to the pain.

174. The Crown submitted that the injury and degree of pain caused by the act of buggery is relevant to the objective seriousness.

175. It was submitted that in all the circumstances this offence, count 8, falls just above the midrange of objective seriousness.

176. With respect to count 10, which is also an act of buggery pursuant to s 79 of the Crimes Act, the Crown reminded the Court that the offender penetrated the victim’s anus with his penis whereupon the victim felt pain. The victim described it as seeming to “go on for an eternity”. After the offender had finished, the victim noticed that he was wet around his rear end and was told to leave, which he did.

177. Crown submits that albeit it is not known how long the offence lasted for, the evidence establishes that it was more than momentary or fleeting which in turn is relevant to objective seriousness. Additionally as in count 8, in count 10 there was a sudden penetration which caused injury and a degree of pain and over the next few days the victim said his anus was sore and there was a spot of bleeding.

178. These factors are also relevant to the degree of objective seriousness.

179. The Crown submits that in all the circumstances count 10 is above the midrange and more serious than count 8.

180. The Crown submits that given the date range for the offences it is accepted for the purposes of sentencing for counts 8 and 10 the offender gets the benefit of the latest part of the date range for both offences.

181. It follows that the two counts may have happened close in time. However, the Crown submits that nonetheless the separate and discrete nature of the offending does not permit a substantial degree of concurrence as it was submitted by defence.

182. The Crown submits that both counts 8 and 10 are not part of the same episode or occasion and the only thing they had in common is that they were committed upon the same victim. It was submitted that a custodial sentence is warranted for all offences.

183. The Crown reminded the Court that counts 2 and 5 carry a maximum penalty of five years, while counts 8 and 10 carry a maximum penalty of 14 years, and there are now applicable standard non-parole periods for either offence.

184. The Crown made extensive written submissions with respect to s 25AA of the Crimes (Sentencing Procedure) Act of 1999 and its application in the present circumstances.

185. Section 25AA of the Crimes (Sentencing Procedure) Act provides as follows.

“Sentencing for child sexual offences

(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 the 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 sentencing which may include recent psychological research or the common experience of courts.

(4) This section does not affect section 19.

(5) In this section child sexual offence means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years:

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

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

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

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

186. The Crown reminded the Court that for the purposes of sentencing none of the victims were over the age 16 years

187. The Crown also reminded the Court that in accordance with s 25AA(4) the offender continues to get the benefit of any reduction in penalty and is not subject to any increase in penalty that had particular effect to the charge pursuant to s 79, the two counts of buggery, where the applicable maximum penalty has a range from 14 years buggery to ten years according to s 61D, and then 20 years if prosecuted under 61J(1).

188. However it is also noted that for offences where there is no consent element, for example, 61C(4) for the offence, it would carry a maximum penalty of 12 years.

189. It is submitted, however, that consideration be given to the fact that the offence of buggery is very narrowly defined as an act of penile/anal intercourse and later analogous offences cover a variety of conduct.

190. It was submitted that it would be correct to pay due regard to the maximum penalty applicable at the time of the offence whilst not ignoring the later legislative changes for analogous offences and their penalties. Such an approach would not be inconsistent with Woodward v R [2017] NSWCCA 44 which applied R v Ronen [2006] NSWCCA 123, which states at para 58 as following per RA Hulme J at 58:

“In R v MJR [2002] NSWCCA 129; 54 NSWLR 368, it was held by four of the members of a specially convened five judge bench of this Court that where sentencing practice has moved adversely to an offender it is necessary to have regard to the sentence practice as at the date of the commission of the offence.”

191. Paragraph 59:

“That sentencing policy is reflected in s 19 of the Act, the Sentencing Procedure Act of 1999.

The effect of alterations in penalty:

(1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after commencement of the provisions of the Act or statutory rule increasing the penalty.

(2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.

(3) In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty.”

192. Paragraph 60:

“Spigelman CJ in R v MJR said in relation to s 19:

Section 19 of the Crimes (Sentencing Procedure) Act of 1999 and its predecessor, s 55 of the Interpretation Act 1987 (NSW) reflects the principle of perceived fairness applicable to maximum and minimum penalties which it is appropriate to adopt for other aspects of the exercise of the sentencing discretion.”

193. Paragraph 61:

“Section 19 does not have a direct application to the present issue. The penalty for rape and buggery was not reduced by Parliament, rather the common law offences were replaced with statutory offences in somewhat different terms.”

194. Paragraph 62:

“A similar situation arose for consideration in R v Ronen where the offenders were sentenced for offences of conspiracy to defraud the Commonwealth of taxation revenue. There were two counts in the indictment but that was only because within the period in which the conspiracy was on foot there was a change to the statutory provisions prescribing the offences charged. The maximum penalty under both provisions at the relevant time was imprisonment for 20 years. After the offences, but before the sentencing, the most recent making provisions in the Crimes Act of 1914 (Commonwealth) was repealed. In its place a series of offences was created in the Criminal Code whereby the maximum penalty for similar offending was imprisonment for ten years.”

195. Paragraph 63:

“Howie J referred at para 29 to s 4F(2) of the Crimes Act (Commonwealth) which made similar provision to s 19(2) of the Crimes (Sentencing Procedure) Act. He rejected at para 32 an argument that s 4F(2) should be considered broadly and held that there had not been a reduction in the maximum sentence for the offence formerly in the Crimes Act of the Commonwealth. The Criminal Code provisions cover the same criminal activity but provide different offences with different elements and were affected by the Code’s provision in relation to criminal responsibility.”

196. Paragraph 64:

“The same is the case here. The common law offence of rape was confined to penile/vaginal intercourse whereas the offence of sexual intercourse without consent in 61D by virtue of the extended definition of sexual intercourse in the new s 61A applied to a broader range of sexual activity. The same can be said about the common law offence of buggery. Moreover, s 4(1) of the Crimes (Sexual Assault) Amendment Act specifically applied s 8 of the Interpretation Act of 1897 to the abolition of s 63 of the Crimes Act in the same way as it applied in the case of the repeal of former Act in effect preserving its operation in respect of conduct occurring prior to the abolition. The same can be said about the Crimes (Amendment) Act of 1984 in that the same Interpretation Act provision would apply by virtue of the repeal of the wording of s 79 and substitution of wording confined its concern to the offence of bestiality.”

197. Paragraph 65:

“In R v Ronen, after concluding the former maximum penalty of imprisonment for 20 years applied, Howie J went on to say in para 41 that it did not necessarily follow that the subsequently reduced maximum was totally irrelevant. He said at para 71 that it was impossible to ignore the fact that the maximum penalty for the same conduct had in fact been reduced and that an explanatory memorandum accompanying the amending bill included an express statement that the older was ‘far too high’. After referring at para 72 to the maximum penalty for an offence representing the policy of the legislature and citing authorities including Markarian v The Queen [2005] HCA 25; 228 CLR 357, he concluded in part at paras 74 and 75 as follows:

‘In my opinion the judge was correct to take into account the change in the legislature’s attitude to this type of offending and to reduce the impact of the maximum penalty accordingly. The judge was bound to take the change of legislative policy into account not simply as a matter of fairness to the applicant but also because it maintains consistency in the way that the courts are guided in sentencing by the legislature’s view of the seriousness of the offending expressed through the maximum penalty prescribed of an offence’.”

198. That concludes the quote from the case of Ronen at paras 58 to 65 inclusive. I continue.

199. The Crown submitted that with respect to the report of Dr Sally McSwiggan dated 4 November 2019 that cognition was not formally assessed over AV link as it did not appear necessary. “He showed no deficits indicating the need for formal cognitive evaluation.”

200. The offender appeared to have above average intellectual skills with high functioning and by all accounts had a stable and happy childhood and a supportive family. There was no recorded forensic history.

201. The Crown submitted that whilst there was some physical issues related to the offender’s age, otherwise he appeared to be mentally adjusting well to custody. The Crown submitted that there was nothing remarkable about the offender’s health and he appeared to be high functioning. He also had a supportive family. Nonetheless, it was that support that was enabling of the offender’s continued denial of the offences.

202. With respect to remorse in the report, the offender denied a history of sexual interest in prepubescent or pubescent children. The Crown submitted that such a denial demonstrated an absence of remorse. Lack of remorse was relevant to prospects of rehabilitation because it can inhibit proper engagement with treatment programs.

203. The Crown submitted that remorse can only be taken into account if the offender has provided evidence that he or she has accepted responsibility for his or her actions, acknowledging injury or loss or damage that he may have caused. It was submitted by the Crown that the offender has not done this. It was submitted that remorse is a major factor in determining whether an offender is likely to reoffend and has good prospects of rehabilitation.

204. The Crown submitted that any sentence imposed must take into account the considerable need for general deterrence, denunciation and the protection of the community. The sentence must recognise the substantial harm that the offence has caused the victims and the need for punishment and specific deterrence of the offender.

205. With respect to delay, the Crown reminded the Court that a strike force was established in 2014. With hundreds of people relevant to the investigation, statements were obtained from the complainants in 2015, 16, 18 and 19.

206. The offender was first arrested and interviewed in 2016 with a second interview in 2017. Any delays since the date the matters were first reported are generally due to the progress in the matter through the criminal justice system.

207. It was submitted that the delay between the offences and their reporting may be seen reasonably as a direct product of the nature of the offending itself, given the psychological considerations at play with such offences.

208. The Crown submitted that it would not stand to reason accordingly that the offender would get the benefit of such delay. This was not a case of unexplained delay during which there had been progress towards rehabilitation that would increase the hardship brought about by a custodial sentence. The Court is reminded by the Crown that the offender continues to deny the offending.

209. The Court was taken to the authorities of Hurst v R [2017] NSWCCA 114 where the Court comprehensively reviewed authorities on delay. In Sabra v R [2015] NSWCCA 38 as follows:

210. Paragraph 130:

“Where there is unexplained delay of a lengthy period during which there has been progress towards rehabilitation and/or a change of circumstances that increases the hardship brought about by a custodial sentence, it is often appropriate for a court to impose a sentence that would otherwise be considered to fall below the range of an appropriate sentence, taking into account all other matters: Hughes v R [2013] NSWCCA 120 at para 58.”

211. A comprehensive review of the law on this issue was set out by Bellew J in Sabra v R [2015] NSWCCA 38 at paras 28 to 41.

212. At para 131:

“As Bellew J said in Sabra v R, citing Wood CLJ in Blanco v R, the authorities establish that delay may be taken into account on sentence for three reasons:

(1) Because the uncertainty occasioned to the offender constitutes a detriment suffered;

“The Bill also makes important changes to the Crimes (Sentencing Procedure) Act of 1999 to ensure that when sentencing an offender for a child sexual offence the Court is not to take into account the offender’s prior good character or lack of previous convictions if that factor was of assistance to the offender in the commission of the offence. The simple fact of a person’s clean record and good character may assist an offender to gain the trust of the child or the child’s parents in order to commit a sexual offence against a child. Any offender who has misused his or her perceived trustworthiness and honesty in this way cannot use his or her good character and clean record as a mitigating factor in sentencing.”

338. Council for the Crown submitted that s 21A(5A) applied in circumstances of this case where the offender was working as the assistant manager of the Bexley Boys’ Home. It may be accepted that the offender’s prior good character assisted him to hold the position of assistant manager which he abused by the offences committed against the victims. See for example R v Lord [2013] NSWDC 16 at 158 and 160.

339. I have also had regard to the defence submissions made in this respect.

340. With respect to s 21A(5A), I am of the view that the present case falls squarely within the terms of that provision. Accordingly, the offender’s prior good character and lack of prior convictions are not to be taken into account at all as a mitigating factor. See further R v Stoupe [2015] NSWCCA 175 at paras 183 and following.

341. I find that the mitigating circumstance that the offender is unlikely to reoffend is made out according to s 21A(3)(g) and the offender does have good prospects of rehabilitation given his positive subjective features. Section 21A(3)(h).

GENERAL AND SPECIFIC DETERRENCE

342. I have referred to s 3A which sets out the purposes for which a court may impose a sentence on an offender. Section 3A(b) includes both general and specific deterrence.

343. Having regard to the nature of the offending involving sexual and indecent assaults upon children, the Court is well aware of the need for general deterrence. Having regard to this offender, specific deterrence is less relevant giving his advancing years, the facts that he no longer has access to children in a Salvation Army context and that he will be in custody for some time.

SPECIAL CIRCUMSTANCES

344. I am mindful of the offender’s advanced age and the number of health issues that have been carefully outlined in the reports of Dr La Hood and Dr McSwiggan. This may make his time in custody more difficult.

345. The offender was a carer for his wife of many years prior to his incarceration. His present inability to assist her because he is in custody may cause his time in custody to weigh more heavily on him.

346. Given the offender’s continued denial of his offending behaviour which I note of course is his right, nonetheless make the issue of rehabilitation more difficult to accommodate. The complexity of the rehabilitation process also, in my view, requires additional time on parole to ensure that the rehabilitation process is of assistance to him and in turn the community.

347. The sentencing exercise must provide a suitable structure to ensure that rehabilitation of the offender is achievable. I am of the view that a longer period of rehabilitation is in order to address those difficulties.

348. For all of those reasons I am prepared to find special circumstances and adjust the statutory ratio in his favour and I confirm that I have done so.

REMORSE, REHABILITATION

349. The Crown disputes that the offender has accepted any responsibility for his offending behaviour. I do not believe that the offender would challenge that submission given his continued denial of the offending behaviour and the number of references which have been put before the Court which support that contention. Accordingly, the Court cannot find any evidence of remorse.

350. As noted above, rehabilitation needs to be carefully designed using the parole period to assist the offender with dedicated counselling and proactive programs such as the Deniers Program.

OBJECTIVE SERIOUSNESS

351. The sentencing exercise requires reasonable proportionality between the sentence and the circumstances of the crime, and the relative importance of the objective facts and the subjective features will all of course be different in every case. Due weight must be given to the objective circumstances and the Court undertakes a process of instinctive synthesis.

352. Maximum penalties are legislative guideposts to be considered along with other established sentencing practices both at common law and legislatively including considerations of those matters identified in ss 3A, 21A, 22, 22A and 23 of the Act where applicable.

353. Noting the aggravating features of the offending which I have found above and for the following reasons:

1. With respect to count 2, AM was aged approximately eight years of age and given that there is no age range for this count, he must fall towards the lower end of the range for victims.

2. The offender contrived a reason to isolate the victim from other boys he was playing with by suggesting that he needed to shower, possibly to see his father, to facilitate the offending.

3. The victim was naked.

4. There was touching on his bare skin.

5. The offender stopped because of the nearby presence of other staff members, not through a realisation of the wrongdoing of his behaviour.

354. I am of the view that the objective seriousness of the offending from count 2 lies at the midrange of objective seriousness.

355. Count 5 on the indictment was a charge of indecent assault with respect to DC. Noting the aggravating features of the offending which I have found above and for the following reasons:

1. There was prodding around the anus of the victim.

2. The victim was naked.

3. The offender stated to the victim that he had worms so that there was an aspect of humiliation around the touching.

4. The victim verbally reacted to this.

5. Was told to go to the office.

6. Waited in the dark for a long period of time before the offender arrived.

7. The victim was very nervous and was expecting to be punished.

8. He started sucking on his upper arm causing some bruising.

356. For all of those factors I am of the view that the objective seriousness lies just above the midrange.

357. Were I even to take out those factors which happened directly after the offence, that is being told to go to the office and waiting in the dark where he was nervous and sucking on his upper arm as they are post-offending factors, nonetheless I would still find the objective seriousness of this matter lies just above the midrange given the serious nature of the factors already found.

358. I turn now to count 8. This was a charge of buggery. Noting the aggravating features of the offending, which I have found above, and for the following reasons:

1. The victim must be assessed as aged at the oldest end in the date range pleaded by the Crown being 14 years. However, there was no age range factor for this offence and included adults.

2. He directed CN to go to his own quarters where there was no likelihood of other staff members being present.

3. The penetration was without warning.

4. It caused pain and bleeding.

359. I am of the view that this matter is just above the midrange of objective seriousness.

360. Count 10 likewise was an act of buggery upon CN. Noting the aggravating features of the offending which I have found above and for the following reasons:

1. The victim must be assessed as aged at the oldest in the date range pleaded by the Crown being 14 years. However, there was age range factor for this offence and included adults.

2. The victim felt pain.

3. The victim described it as seeming to go on for an eternity.

4. The victim noticed he was wet around his rear end and he was told to leave, which he did.

5. There was sudden penetration.

6. Which caused injury and a degree of pain and over the next few days the victim said his anus was sore and there was a spot of bleeding.

361. I am of the view that this matter, count 10, is above the midrange of objective seriousness.

DELAY

362. Delay does not always operate to mitigate on sentence. See SM [2014] NSWCCA 137 at 24 where the Court stated:

“I do not consider that there was evidence that the applicant was left in a state of uncertain suspense of the kind referred to by Street CJ in R v Todd (1982) 2 NSWLR 517 and 519.”

363. I have taken into account the report of Dr McSwiggan in so concluding. I do not consider that her report provides any assistance to the applicant on this ground. Second, there was no delay referred to in Todd above arising from the operation of the criminal justice system such that the applicant’s fate or position was not determined for many years. In many ways indeed the applicant has had the substantial benefit of the delay resulting in findings that he has good prospects of rehabilitation.

364. Also in Magnusson [2013] NSWCCA 50 at para 62, the Court said that:

“Whilst it is true that the applicant had not offended again since the last of the offences, it is also true that having sexually assaulted each of the victims over many years, he escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that time. Furthermore, even if the reform to the offender had been truly exemplary, general deterrence would still have a significant role to play in sentencing an offender.”

365. In Sabra [2015] NSWCCA 38, there was a 17 month delay between admissions at the execution of a search warrant and a CAN, being a court attendance notice, being served on the offender, 13 months before an indictment was filed in the District Court and five and a half months before the offender was sentenced.

366. In Giourtalis previously referred to, Bathurst CJ considered the relevance of delay on sentence in a case involving allegations of a complex fraud and cited Scook [2008] WASCA 114 at paras 57 to 65. Relevantly, the principle that delay will ordinarily be a mitigating factor on sentence exists where, firstly, it has resulted in significant stress for the offender or left him or her to a significant degree in uncertain suspense, or, two, during the period of delay the offender has adopted a reasonable expectation that he would not be charged or that a pending prosecution would not proceed and the offender has ordered his affairs based on the faith of that expectation.

367. In Sabra at first instance, the judge found the first factor applied thus delay ought to have operated to mitigate on sentence.

368. At para 55, it was said that delay is not attributable to an offender that may be relevant on sentence at a number of different levels. Where there is evidence that delay has led to an adverse reaction with respect to their circumstances over and above stress and anxiety or interrupted rehabilitation, then greater weight will be given to such delay in the sentencing process and will obviously be greater.

369. In McKittrick v R [2014] NSWCCA 128 at 17, which was applied in Coles v R [2016] NSWCCA 32 to show that there was no evidence to explain delay and thereby justifying no mitigation on sentence.

370. I accept the Crown’s submissions with respect to the reasons why the victims did not complain to be persuasive and powerful. The offender was in a disproportionate position of authority over every aspect of their lives. One victim at least gave evidence of being fearful of him. The Court accepts that there are a plethora of compelling reasons why the victims did not complain for decades.

371. I have found that there is no evidence before the Court to establish that the offender lived in a state of suspense over many decades given the substantial delay between the last date pleaded being 1974 for the offending to have occurred. The offender had denied the offending behaviour and continues to maintain that position as is his right. That being so, there could be no evidence that the offender lived in fear of his offending behaviour being discovered, nor is there any evidence that during the period of delay the offender has adopted a reasonable expectation that he would not be charged and that any pending prosecution would not proceed and the offender has ordered his affairs based on the faith of that expectation.

372. Nonetheless I am most mindful of the need to be flexible in this regard and to consider the case on all of the individual circumstances, and to be scrupulously fair to the offender in this regard. Accordingly, I am prepared to mitigate the sentence somewhat to allow for the fact that the substantial delay of many decades has meant that the offender faces custody in his advanced years.

EXTRA CURIAL PUNISHMENT

373. Whilst the Court notes the degree of public interest in this matter and the consequential loss of his Salvation Army pension, nonetheless the Court is not satisfied to the requisite level that extra curial punishment has been established on the facts before the Court.

EXCEPTIONAL HARDSHIP TO THIRD PARTIES

374. Whilst the Court notes the issues surrounding the health of the offender’s wife, and the matters raised in the various references and letters comprehensively put before the Court by family members, the Court is not satisfied that exceptional hardship above what is expected by the incarceration of a family member is established. The Court hastens to add, however, that that factor has been taken into account in the general mix of matters to be considered as a part of the instinctive synthesis that I am required to undertake in the sentencing exercise.

TOTALITY AND ACCUMULATION

375. I have considered principles of totality and accumulation. It is my view the sentences to be imposed require a component of partial accumulation to take into account the separate nature of the offences and the separate victims.

376. I accept that as between counts 8 and 10, although the separation in time cannot be determined, nonetheless the evidence establishes that they are clearly two separate events occurring in two discrete locations. I therefore propose to impose a modest amount of accumulation to reflect the separate nature of that offending.

377. When I impose the sentence, I am mindful to avoid imposing a crushing sentence. See R v MAK, R v MSK [2006] NSWCCA 381, (2006) 167 A Crim R at 159.

SENTENCE

378. I turn now to sentencing.

379. The sentencing exercise is complex given the issues of delay and the historical context of the offending. As indicated, this is a matter that is appropriate for the imposition of an aggregate sentence pursuant to the provisions of s 53A of the Crimes (Sentencing Procedure) Act. In doing so I have considered issues of concurrency, accumulation and totality together with the total effect of the overall sentence rather than simply accumulate each of the hypothetical sentences that I will subsequently nominate.

380. The sentence is intended to reflect appropriate accumulation and the offender’s overall criminality. The non-parole period I have calculated to reflect the minimum period the offender should spend in custody having regard to all of the purposes of sentencing, together with an acknowledgement that he will be spending a substantial period of time in custody.

381. It is in the public interest that there also be a period of conditional liberty on parole so as to assist the offender in his rehabilitation and readjustment to life in the community, particularly against the background of his senior years whereby this sentence will impose considerable restriction in the latter years of his life.

382. The purpose of sentencing includes both general and specific deterrence. General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. Courts have regularly observed that children have a right to grow up free from abuse of any sort.

383. Accordingly, our courts have a significant function in protecting children from abuse by imposing sentences that will deter others who may be inclined to engage in such conduct, particularly where the perpetrator is in a position of trust and/or power as the offender was here. This is the paramount function of general deterrence.

384. As to specific deterrence, the offender’s age, health and confinement to gaol at this stage of his life combine to make this factor of lesser importance. I am satisfied that the sentence I impose will operate as a significant personal deterrent.

385. Denunciation is also extremely important in this exercise as is recognition of the harm caused.

386. Balanced against the strong subjective features that the offender puts before the Court is the need to ensure that these four offences of sexual offending and indecent assault against vulnerable children whom the offender was in a position of trust and authority over are properly punished. The Court, in the sentencing exercise, must send a message to those who sexually abuse children that their actions will not be tolerated and that they will receive significant and appropriate punishment.

387. Condign punishment is required to ensure that justice is done. The offender was in a position of significant trust and authority over some of the most vulnerable children in this State. Those children lived in a home run by the Salvation Army into whose care they had been entrusted either by the State or by their parents whose personal circumstances compelled them to do that. Instead of being provided with the safety and security that they were properly and justly entitled to expect, they were exposed to sexual abuse and indecent assault at the hands of the assistant manager, the offender. The offender abused the trust and authority placed in him in an abhorrent and flagrant way.

388. The Court notes the ongoing family support that the offender has the benefit of and is mindful that the offender denies the offending as is high right. His family and supporters in their letters before me have largely been unable to accept the findings of guilt that have been made. Nonetheless, I put that to one side.

ORDER

389. Mr McIver, would you please stand?

390. You are convicted of the offences before the Court. I propose to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. I have decided to impose an aggregate sentence of imprisonment.

391. The aggregate sentence I impose consists of a non-parole period of five years, eight months and 28 days commencing from 13 September 2019 and a head sentence of nine years six months. The offender will become eligible to be released on parole on 9 June 2025.

392. The sentences that I would have imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are as follows:

1. For the offence for count 2, a sentence of two years.

2. For the offence for count 5, a sentence of two years three months.

3. For the offence of count 8, a sentence of five years.

4. And for the offence of count 10, a sentence of six years.

393. They are the indicative sentences.

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Decision last updated: 03 March 2020