R v McPhillamy, Richard

[2015] NSWDC 423

District Court

New South Wales

Medium Neutral Citation:	R v McPhillamy, Richard [2015] NSWDC 423
Hearing dates:	Sentence: 4 and 8 May 2015
Decision date:	08 May 2015
Jurisdiction:	Criminal
Before:	King DCJ
Decision:	Convicted on each count. Indicative sentences: COUNT 1: [SEQ 3] Aggravated act of indecency-victim under 16 & under authority offender [s61O(1) Crimes Act 1900]: 1 year COUNT 2: [SEQ 5] Aggravated indecent assault [s61M(1) Crimes Act 1900]: 18 months COUNT 3: [SEQ 4] Aggravated act of indecency-victim under 16 & under authority offender [s61O(1) Crimes Act 1900]: 15 months COUNT 4: [SEQ 6] Aggravated indecent assault [s61M(1) Crimes Act 1900]: 21 months COUNT 5: [SEQ 7] Sexual intercourse-person aged 10 or over & under 16-under authority [s66C(2) Crimes Act 1900]: 3 years & 6 months COUNT 6: [SEQ 8] Sexual intercourse-person aged 10 or over & under 16-under authority [s66C(2) Crimes Act 1900]: 4 years Aggregate sentence: Special circumstances found Sentenced to a term of imprisonment of 6 years, comprising of an NPP of 4 years to commence on 13/2/15 and to expire on 12/2/19, and a balance of term of 2 years to commence on 13/2/19 and to expire on 12/2/21. Eligible for parole on 12/2/19.
Catchwords:	CRIMINAL LAW – sentence – offences against the person - relevant factors – indecent assault person aged under 16 – sexual intercourse person aged over 10 and under 16 – under authority - delay
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Dodd (1991) 57 A Crim R 549 Ibbs v The Queen [1987] 163 CLR 447 Mill v R [1988] HCA 70 R v Allpass (1994) 72 A Crim R 561 R v Burchell (1987) 34 A Crim R 148 R v Dennis (unreported) 14 December 1992 NSWCCA R v Gebrail (unreported) 18 November 1994 NSWCCA R v Hibberd [2009] NSWCCA 20 R v Jarrold [2010] NSWCCA 69 R v KRC (2000) NSWCCA 541 at 32 R v MJR [2002] 54 NSWLR 368 R v Moon [2000] 117 A Crim R 497 R v Shore [1992] 66 A Crim R 37 Thorp v R [2010] NSWCCA 261 Veen v The Queen (1979) 143 CLR 458 Wu v R [2011] NSWCCA 102.
Texts Cited:	Judicial Commission of NSW, “The impact of the standard non-parole period sentencing scheme on sentencing patterns in NSW”, Research Monograph 33, May 2010
Category:	Sentence
Parties:	Regina (Crown) Richard McPhillamy (Offender)
Representation:	Counsel: Crown: Mr J Bowers Defence: Mr G Heathcote Solicitors: Crown (ODPP NSW): Ms A James Defence (Proctor & Associates): Mr M Campbell
File Number(s):	2013/0014045
Publication restriction:	Pursuant to non-publication orders there is to be no publication of anything that identifies or is likely to lead to the identification of the complainant and tendency witnesses.

HIS HONOUR: Richard McPhillamy appears for sentence in respect of six offences.

1. Two offences, Counts 1 and 3, are contrary to s 61O(1) of the Crimes Act 1900. They are expressed in the same terms in the indictment, being: that he, between 1 November 1995 and 31 March 1996 at Bathurst in the State of New South Wales, committed an act of indecency towards NC, a person under the age of 16 years, namely 11 years old, and at the time of the offence NC was under the authority of Richard McPhillamy. The maximum sentence provided for such an offence is one of five years imprisonment.

2. There are two further offences, being Counts 2 and 4 on the indictment, being offences contrary to s 61M(1) of the Crimes Act 1900. They are also expressed in exactly the same terms: that he, between 1 November 1995 and 31 March 1996, at Bathurst in the State of New South Wales, assaulted NC and at the time of the assault committed an act of indecency with NC in circumstances of aggravation, namely that NC was a person under the age of 16 years, namely 11 years old. In relation to those offences the maximum penalty is seven years imprisonment.

3. The two further offences are each contrary to s 66C(2) of the Crimes Act 1900, being Counts 5 and 6 on the indictment. They are expressed in exactly the same terms as each other, that is: that he between 1 November 1995 and 31 March 1996, at Bathurst in the State of New South Wales, had sexual intercourse with NC, a person above the age of ten years and under the age of 16 years, namely, 11 years old, in circumstances of aggravation, namely that at the time of the sexual intercourse, NC was under the authority of Richard McPhillamy. The maximum penalty provided for such an offence is one of ten years imprisonment.

4. In respect of each of the six offences, they were committed prior to February 2003, and there is no relevant standard non-parole period.

5. The trial commenced in respect of all of the offences on Monday 3 February 2015. The jury returned verdicts of guilty on each count on 13 February 2015.

6. The offender was arrested and charged on 6 May 2013; however, he was released on bail and he has been in custody in respect of this matter since bail was refused at the conclusion of the trial on 13 February 2015.

7. I find the following facts beyond reasonable doubt, consistent with the verdict of the jury.

8. Counts 1 and 2 occurred within the charged date range on the same occasion and Counts 3 to 6 occurred on a separate occasion within the date range a few weeks after the first incident. At all times, the victim was 11 years of age. The offender was at the time an acolyte at St Michael and St John’s Cathedral, Bathurst. He assisted in Mass services particularly on Saturday evenings. The victim lived with his family in Bathurst, and became an altar boy towards the end of 1995. He was under the direct supervision of the offender when they were both present assisting at Mass. On both occasions, the offender followed the victim into a toilet near the front foyer entrance of the Cathedral prior to the service. In respect of Count 1, and the first incident, having followed the victim into the toilet, the offender asked the victim in words to the effect, “Have you tried this before?” or “Have you done this before?” and said, “Let me show you something.” He then commenced to masturbate himself and encouraged the victim to do the same. They had initially both been urinating into the bowl at the same time. The victim replaced his penis in his pants, brought it out again and started to copy the offender, with his encouragement. The offender was saying to him words to the effect of, “Hold it like this and rub it back and forward, like that” and “Doesn’t that feel good?” and similar comments.

9. Count 2; the offender then touched the victim’s hand and penis, demonstrating to him how to masturbate himself. The offender’s hand was mostly in contact with the child’s hand, although there were brief moments of contact with his penis. It lasted for a period of a couple of minutes. At the same time as the offender was touching the victim’s penis and hand, he continued with one hand to masturbate himself and ejaculated. After they had exited from the toilet, the offender subsequently spoke to the victim, indicating to him that the fact that the victim’s penis had become erect meant that the victim was gay, and that the victim would have to be careful about disclosing what had happened because everyone would turn against him. The victim was sure that he could remember the particular phrase, “People like us need to stick together”.

10. The second incident relating to Counts 3 to 6 occurred a few weeks later. Again, the offender followed the victim into the same toilet and commenced to masturbate again and encouraged the victim to do the same, which he did.

11. On this occasion, the victim described the action as being more forceful. After the victim had started to masturbate, the offender took over masturbating the child, wrapping his hand around his penis and rubbing it.

12. A little later he said, “I’ll show you something even better”, and then took the child’s penis into his mouth and performed fellatio on the child. At the time the offender had an erection. The offender sucked the child’s penis for a minute or two before saying to him words to the effect, “You’ve got to return the favour”, or something about “Fair’s fair”, and the victim had to do the same to him. The victim then took the offender’s penis into his mouth and performed fellatio on him. The offender’s penis was erect at the time.

13. The offender was doing most of the movement, although for a bit he put his hands on the back of the victim’s head, and was moving the victim’s head. The victim gagged and commenced crying. The offender stopped and comforted him, and later apologised after they had attended the Mass. Again he impressed upon the victim not to tell anyone.

14. The victim NC made no complaint in relation to the matters until he approached the Catholic Church Professional Standards Office and the Bishop’s Office in about March 2009. He sought compensation from the Catholic Church, and he made a written statement in relation to his claim for compensation in April 2010, and subsequently in November 2012 and February 2013 he made two statements to police about the offences.

15. An aggravating feature is that the offender was in a position of trust and he violated that trust by sexually assaulting an 11 year old child; however the breach of trust is already taken into account in the nature of the charges in respect of Count 1, and also in respect of Counts 3, 5 and 6. It is not taken into account by the nature of the charge in respect of Count 2 or Count 4.

16. Each of the offences within the context of the individual type of charge is objectively serious, as is indicated by the maximum statutory penalties provided, and the nature of the specific acts. The offender engaged in acts of masturbation with the complainant on both occasions, and progressed to two separate acts of fellatio on the second occasion.

17. NC was a pre-pubescent 11 year old boy with no sexual experience, and he was under the immediate care and control of the offender in a religious setting. The offender exploited his authority over the victim in that context to engage in sexual activity with him.

18. The offending involved two separate incidents, and on each occasion more than one offence was committed. The offender must have been well aware of the victim’s age, and having regard to the victim’s evidence, the offender also knew that the victim had no sexual experience. He deliberately arranged to be alone with the boy at the church and took it upon himself to instruct the victim with regard to masturbation.

19. The nature of the offending escalated to include the later offences involving fellatio. The offences are, in those circumstances, indicative of a course of continuing conduct and were not isolated incidents.

SUBJECTIVE MATTERS

20. The offender did not give evidence on sentence. Available to the Court is the evidence of his partner, Mrs Hazel McGrath, and his mother, Mrs Bernadette Healy. Also available is Exhibit M1, being a report of Dr Olav Nielssen dated 24 April 2015; Exhibit M2, being a medical report from Dr Chobecki relating only to the medical problems of the offender’s mother, dated 29 March 2015; a photocopy of various certifications permitting the offender to drive various construction type vehicles; and related matters, being that: he holds certificates for being a nationally assessed plant operator, he has a national licence to perform high risk work, and a general construction induction certificate.

21. In addition, there is a pre-sentence report under the hand of Angela Coker, dated 24 April 2015, together with a Justice Corrective Services pre‑sentence consultation, providing an actuarial risk assessment and an opinion regarding the offender’s suitability for and access to sex offender treatment programmes, and a comment with regard to risk considerations. That report is under the hand of Anne Young, a senior psychologist with the Central West Cluster. It is dated 24 April 2014.

22. In addition, and finally, there is a criminal history.

23. The offender was sentenced on 11 March 2011 in respect of a number of offences involving sexual assault and an act of indecency in respect of two persons, both being under the age of 16.

24. There were four counts in respect of one victim, and two counts in respect of the other victim. He was convicted in respect of those matters after a trial. The offences occurred in two separate periods, but both were in 1985. There were two counts in respect of one victim between 1 February 1985 and 31 March 1985. The remaining four counts, in respect of the second victim, were between 1 October 1985 and 31 December 1985.

25. The offender at the time was a house master at St Stanislaus College, Bathurst. He was a house master in respect of the Boarding College at which the two victims resided, subject to his supervision.

26. His trial in respect of those offences took place in about October 2010, approximately 25 years after the event.

27. As a result of the allegation made in respect of those matters, the offender’s residence, which he then shared with Mrs McGrath and her three children, were searched, and located on a computer was child pornography, which resulted in his being charged with four counts of possessing child pornography. Each of the four counts related to an individual photograph which depicted young boys naked, and in some cases apparently in the process of masturbation, either alone or with others. In respect of those charges he entered pleas of guilty, and on 11 March 2011 he was sentenced to six months imprisonment commencing on 10 December 2010.

28. In respect of the 1985 offences, in respect of four counts occurring between October and December 1985, he received 18 months imprisonment commencing on 10 June 2011 with a six‑month non-parole period, and for the offences occurring between February 1985 and March 1985, he received six months imprisonment commencing on 10 March 2011.

29. His only other conviction is in relation to an offence occurring between 1 December 2013 and 31 December 2013, being an offence of failing to comply with reporting obligations, for which he received a s 9 bond of 18 months on 28 April 2014 at the Bathurst Local Court. The reporting obligations were in relation to the requirement that he report once per year as a result of his conviction for the previous sexual abuse offences.

30. I am of course not sentencing the offender for any matters that he has been sentenced for in the past, but it is relevant that he was convicted in respect of sexually abusing young boys in 1985, some ten years before the current offences. It is also relevant that his possession of child pornography, when arrested in respect of the earlier offences, that that child pornography related to young males and in part young males masturbating or in sexual poses, whether that be masturbating alone or together with others. At the time of these offences, the offender was 34 years of age. He is now 54 years of age.

31. He was raised in the Bathurst area with a strict Catholic upbringing. He is the eldest of four siblings of his parents’ union. His parents separated approximately 25 years ago. He maintains good relationships with both parents, although he only has limited contact with two of his brothers. He lived at home until the age of 29, when he moved to Melbourne to commence studies for the priesthood in the Catholic Church, in respect of which he was not successful, and discontinued after approximately three years, returning to Bathurst. He went to school in Bathurst at various Catholic schools, but did not continue beyond year 10, as he was not motivated to complete the Higher School Certificate.

32. After leaving school, he had a job spraying weeds, then as a roustabout in a shearing shed, as a factory hand at a cannery and labouring in a plastics factory, and as a farm hand with a horse stud. His main occupation eventually became as a bus driver, beginning in 1994 and continuing until 2008. He had driven school buses, CountryLink coach routes and had done charter work for State Rail. At the same time, he was regularly volunteering for work through the cathedral parish. He is said to have obtained a Diploma of Social Welfare through Orange TAFE. There is no evidence that he has any problems such as alcohol, gambling or drugs.

33. His relationship with Mrs McGrath commenced approximately ten years ago in late 2006, and in January 2013 he moved from Bathurst to Dubbo to live with her, before returning to reside with his mother for financial reasons in about October 2014. For a short period, he obtained work at a pet food factory after his release from custody, and before being re‑arrested. His arrest in relation to these matters caused the termination of his work.

34. Mrs McGrath gave evidence that he had never misconducted himself with her youngest son, who was approximately 13 years of age at the commencement of their relationship. She had supported him through the trial in respect of the 1985 charges, and continued to visit him after he was imprisoned. Mrs McGrath is a firm and committed supporter of the offender. She firmly believes that he would not have committed the offences of which he has been convicted, and his possession of child pornography has not affected her view of him at all.

35. What is clear from the material before the Court is that the offender denies having committed any of the offences in respect of which he was convicted after trial in 2010, and also denies having been in possession of the child pornography, despite the fact that he entered a plea of guilty in respect of those charges, as well as continuing to deny the commission of the offences for which he is currently to be sentenced.

36. Mrs McGrath prefers to blame her own child for the pornography, having accepted the offender’s subsequent denials.

37. Since his release from custody in respect of the 1985 offences, and they have had some re‑association, she has said that she was not aware that he was subject to child sex offender reporting or that he had sent letters, contrary to the restrictions, to other child sex offenders, nor that he had received warning letters about such conduct. While I accept that Mrs McGrath is entirely supportive of the offender, it appears to be on the basis that she is prepared to simply bury her head in the sand and ignore the obvious conclusions that must be reached as a result of the course of offending over decades, as demonstrated by the individual charges, including the pornography.

38. The offender’s mother, Bernadette Healy, is also supportive of her son. She is said to have a number of:

“quite significant medical problems which are adversely affected by her son’s incarceration”...”her problems include cirrhosis of the liver of uncertain aetiology and oesophageal varices. The threat of a life‑threatening haemorrhage is there all the time. She also suffers from hypertension, osteoporosis and idiopathic thrombocytopenia, all of which can be aggravated by stress and this whole process is certainly stressful for her”.

39. I have no difficulty in accepting that Mrs Healy is entirely supportive of her son, and that his circumstances and conviction in respect of these matters have had an adverse effect on her. They would be stressful to any parent. However, as to the effect that it may have on a particular condition that she has, I note that she has visited him almost every week in custody. She accepts of herself that she is an active woman. She has been in attendance and present for most if not all of the trial, and whatever health constraints she may have, they have not restricted her in getting out and about or staying in Sydney during the course of the trial. There is nothing exceptional about Mrs Healy’s circumstances that would call for any mitigation in sentence.

40. Dr Nielssen has provided a lengthy report. He has provided a diagnosis of depressive illness on the basis of Mr McPhillamy’s account of his symptoms and the observations of his partner, Mrs McGrath, and a history of some treatment with potent anti-depressant medications, as well as his presentation during an interview. The development of depression in respect of an individual charged with child sex offences and subsequently incarcerated as a result, and being subject to subsequent charges and the prospect of further imprisonment is entirely to be expected.

39. Dr Nielssen states the following:

“Mr McPhillamy does not have a history of any pattern of convictions for other types of offences or of a pattern of antisocial conduct nor does he have any kind of substance use disorder, which are the two main clinical predictors of recidivism. Moreover, his offences took place 20 and 30 years ago, and his personal circumstances were very different and took place when he was immature and sexually inexperienced. It seems that he has since formed two long term heterosexual relationships and on his release would return to live with his de facto partner of ten years. Hence an assessment of his criminogenic risk factors including his age and his recent circumstances would suggest that his probability of further similar offences is comparatively low.”

42. I note that I have some difficulty in accepting Dr Olav Nielssen’s opinion, although I accept that it is based on the information that was provided, which was a Statement of Facts in relation to possession of child abuse material, dated 21 April 2009, a Statement of Facts in relation to charges of aggravated sexual assault dated 6 May 2013, an account prepared by Mr McPhillamy, and a transcript of Mr McPhillamy’s criminal history. The report was prepared on the basis of that material and a single interview at the Metropolitan Reception and Remand Centre on 7 April 2015.

43. I note there appear to be some matters that are inconsistent with other information before the Court. The report of Anne Young of Justice Corrective Services states the following in relation to his relationship history:

“Mr McPhillamy stated that in his mid- twenties he was in a relationship with a woman for 12 months. This relationship was not a sexual relationship. When the woman ended the relationship he said he was very hurt by this. He first had sexual intercourse with a female when he was aged in his late thirties. This was a one-off experience. He did not form another relationship until approximately 2007 when he became involved with Hazel.”

44. Further under a heading of “Intimacy Deficits”, Ms Young states the following:

“Based on my contact with Mr McPhillamy throughout his parole period, he appears to have problems in the area of establishing and maintaining intimacy with others. This area, along with general detachment difficulties, was also highlighted in the private psychological report (Michelle Player, 3/12/2010) at pre-sentence stage for the earlier sexual offences. Ms Player described him as appearing to have a ‘history of major attachment problems which has negatively impacted on his ability to form and maintain appropriate intimate relations and has contributed to general interpersonal difficulties.

Although Mr McPhillamy lived (with) Hazel for approximately 21 months in Dubbo, this relationship has appeared to lack real intimacy. During his period on parole, Mr McPhillamy appeared quite ambivalent about his relationship with Hazel. In the recent phone interview he stated that he is not currently in a relationship with Hazel and has not had contact with her since being in custody. He described the relationship as having failed due to stress and the pressure of his legal case. However, he did say that he expected the relationship would resume when he is again in the community.”

45. I note that, although a psychologist rather than a psychiatrist, Ms Young in my view was in a much better position to be able to make an estimate in relation to the offender and his risk in particular of re-offending. She had available to her material that was provided in relation to the earlier offences. While he was on parole, she had seen him on some ten occasions between 17 February 2012 and 16 November 2012 for the purposes of risk management. He completed his parole on 9 December 2012, and she saw him again at Orange Community Corrections on 17 April 2014 for approximately one hour in relation to his conviction for fail to comply with reporting obligations.

46. Relevant to the risk assessment is the following, as contained in Ms Young’s report:

“Attitude to Offence and Acceptance of Responsibility:

Mr McPhillamy pleaded not guilty to all charges but was found guilty in relation to all offences. He continues to deny the offences. In the phone interview he stated that ‘they never happened at all’. He said he could not believe he had been ‘convicted of this shit’. Mr McPhillamy claimed that he believed the victim made up the allegations for ’the money’. Mr McPhillamy made a number of negative comments about the victim and his truthfulness and gave a number of examples to suggest it was impossible for these things to have happened. “

47. As already noted, Mr McPhillamy not only denies the matters of which he has recently been convicted but denies the matters that he was convicted of in the past, and also denies the pornography charges in relation to which he pleaded guilty. Ms Young found that on applying the Static-99R that the offender was in the moderate/low risk category relevant to other male sexual offenders. However, she also noted that that instrument has some limitations being based on groups of individuals, and accordingly not necessarily reflecting the risk of recidivism of an individual offender, or being sensitive to changes in the offender’s circumstances that may increase or decrease his actual risk of re-offending.

48. The recent review of his overall risk of sexual re-offending has been assessed as moderate/high. I have already referred to the “Attitude to Offence” and ‘Acceptance of Responsibility’ ‘as stated in Anne Young’s report. There is a similar passage in the report of Angela Coca, under the heading “Attitude to Offending”:

“Mr McPhillamy maintained that he is innocent of the current charges, adding that these were ‘against my character.’ He expressed no empathy for the victim, insinuating that the allegations were targeted towards him due to previous media exposure involving the offender’s past offending history. He also opined that the reason behind the victim’s allegations was to obtain financial gain from the Catholic Church. Whilst the offender denied any wrongdoing he expressed a willingness to participate in any custody-based sex offender programs.”

49. She further stated:

“According to the level of service inventory-revised actuarial risk/needs assessment tool, the offender is assessed as a medium to high risk of re-offending.”

50. In my view, the assessment by Ms Young is to be preferred over the assessment by Dr Nielssen, given the significantly greater extent of the information available to Ms Young, and also to her more significant personal exposure to the offender while on parole.

51. There has of course been a lengthy delay between the commission of the offences and now. Delay may be a mitigating factor where it is established that the offender suffered some detriment, although it may not always be a detriment.

52. It is often the case in child sexual assault matters that children do not complain to another person until many years have passed. In these circumstances less weight may be afforded to delay as a mitigating factor in sentencing, R v Dennis (unreported) 14 December 1992 NSWCCA.

53. It is of particular importance where the offender is in a position of trust in relation to the victim, even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence. The sentence imposed should reflect the objective seriousness of the offence, Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved and the offence committed, Veen v The Queen (1979) 143 CLR 458.

54. General deterrence is of prime importance in making the community aware of the attitude of the courts to child sexual offences, R v Burchell (1987) 34 A Crim R 148. Any sentence imposed must embrace a substantial element of general deterrence, R v KRC (2000) NSWCCA 541 at 32. The degree of seriousness may depend on the type of forced intercourse, the degree of violence, the physical hurt inflicted and the humiliation and other circumstances, R v Gebrail.

55. As relevant to s 66C(2), s 61H(1) of the Crimes Act defines a number of specific acts as being “sexual intercourse”, including fellatio.

56. However, it makes no distinction as to any of the defined acts of sexual intercourse as being more or less serious than any other act, as contained within the definition. There can be no prima facie assumption or general proposition that any one form of sexual intercourse is less or more serious than any other form; R v Hibberd [2009] NSWCCA 20, Tobias JA at [20-21], “The ‘heinousness’ of the offending conduct depends on the facts of the case and not on the statute defining the offence.” R v Hibberd, Price JA at 55, referring to Ibbs v The Queen [1987] 163 CLR 447; R v Allpass (1994) 72 A Crim R 561. I will in due course note that there is a distinction, in my view, between Counts 5 and 6 in terms of seriousness.

57. No submissions have been made by either of the parties in relation to the fact that these offences occurred between November 1995 and March 1996, and whether because of that fact alone the offender is exposed to a harsher punishment and sentencing regime than existed at the time of the offence. As I have said, there has been a significant delay between the commission of the offences and sentencing. In R v MJR [2002] 54 NSWLR 368, it was held that:

“Where, by reason of delay, an offender is exposed to a harsher punishment and sentencing regime than that which existed at the time of the offence, and if an authentic and credible body of statistical material existed that is capable of reconstructing what would have been done previously, then the approach outlined in R v Shore [1992] 66 A Crim R 37 should be adopted.”

58. In Shore, Badgery-Parker J at (42) said:

“In my opinion, I should, so far as I am able to do so, seek to impose upon the offender a sentence appropriate not only to the then applicable statutory maximum, but also to then appropriate sentencing patterns. That is by no means easy, but in my view I must endeavour to do so.”

59. In the absence of such statistical material, the Court is constrained to take the non-statistical approach as described by Howie J in R v Moon [2000] 117 A Crim R 497 at 511, and approved by the majority, being Sully J and Spigelman CJ in R v MJR at (107) and (31).

60. R v Jarrold [2010] NSWCCA 69 Howie J at 40 said (citations omitted):

“His Honour was required to sentence on the basis of a proved pattern of sentencing for such matters at the time or, if he could not identify a pattern, he should have followed what I said in R v Moon and adopted by the majority in R v MJR as follows:

The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: ... and be proportional to the criminality involved in the offence committed: … Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the Court will, by approaching the sentencing task in this way, effectively sentence the offender in accordance with the policy of the legislature current at the time of offending, and consistently with the approach adopted by sentencing courts at that time.”

61. The Court has not been provided with any relevant statistical material, so is constrained to take a non-statistical approach as described by Howie J.

62. While I have turned to the Judicial Information Research System and to the recorded sentences imposed for offences prior to the introduction of any standard non‑parole period, I note that the statistics only commence in 2008. In any event, as has been frequently referred to, the statistics are a very blunt tool and in this circumstance are so limited as to be of no assistance. While I am unable to establish a particular sentencing regime for offences of this nature in 1995, I would accept that at least since the introduction of standard non‑parole periods there has been, in general, an increase both to the terms of sentence and the non‑parole periods for standard non‑parole period offences, as referred to in the Judicial Commission publication in 2010, entitled Impact of Standard Non-Parole Periods, Research Monograph 33,

63. Of course, none of these matters have standard non‑parole periods attaching to them. I would accept that it is at least likely that there has been some increase in sentences provided since 1996, irrespective of the effect of standard non‑parole periods, and that I am required to impose sentences consistent with the pattern of sentencing in or about 1995 or 1996.

64. Before turning to the actual sentences to be imposed, there are a number of matters in respect of this offender that are abundantly clear.

65. There is no remorse, there is no contrition and there can be little prospect of rehabilitation in circumstances where an offender continues to deny commission of the offences. That is of course not to say that there is no possibility of rehabilitation. It cannot be said that there is no risk of re-offending nor that there is a low risk in view of the opinions expressed by Ann Young and Angela Coker, particularly where the information before the Court indicates that he has had a long standing sexual interest in pre-pubescent and early pubescent boys and now being convicted of a number of “hands on” sexual offences occurring in the mid-1980s and the mid-1990s in respect of males between the age of 11 and 13, and where in 2009 he was found to be in possession of pornographic images of young males, and where the evidence would indicate that he has sought occupations or engaged in activities which could reasonably be anticipated to bring him into contact with young males, such as being a housemaster at St Stanislaus, a boarding college for male students, and being an acolyte of the Catholic Church in charge of altar boys and girls.

66. Similarly, I note that he also has had a past association with the scouting movement as a volunteer Scouts Assistant Cub Leader from 1995 to 2000. Even in respect of his bus driving, I note that in one of the reports, he refers to himself in that occupation as driving children to and from school.

67. There are of course no offences before the Court that indicate that he has abused his position in relation to the scouts or as a bus driver, but it does at least appear that the offender has in the past sought out occupations where he could be expected to be associating with young children, and in particular young boys, in respect of whom I accept that he has a sexual interest.

68. In respect of the two offences contrary to s 61O(1), being acts of indecency towards a person under the age of 16 years and under his authority, and in respect of the two offences contrary to s 61M(1) of the Crimes Act, being assault and at the time of the assault committing an act of indecency in circumstances of aggravation, namely that NC was under the age of 16: that is Counts 1 to 4. Each of those matters was capable of being dealt with in the Local Court. In my view, in relation to the first incident, including one offence contrary to 61O(1) and 61M(1), it is likely that if there had been no further charges, it would have been seen as appropriate to deal with those in the Local Court. If he had been convicted of those matters prior to being charged with the matters relating to the second incident, I doubt that that course would have been followed in relation to Count 3 and 4 and certainly it was appropriate in the circumstances of Count 5 and 6, being acts of sexual intercourse, that all of the matters be before this court. Those observations have some relevance to the question of what sentence is to be imposed for the individual offences. Another relevant consideration for the Crown in relation to the charges was the fact that by the time these offences were disclosed and the offender was prosecuted, he had already been convicted of the earlier sexual offending in 1985.

69. For the purposes of sentencing, I have had regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. I must take into account the aggravating and/or mitigating factors as referred to in s 21A, subs 2 and 3 as are present, and any other relevant factor. The sentence must reflect the seriousness of the offence as well as reflecting in relation to matters of this nature both specific and general deterrence, as well as meeting the fundamental purpose of punishment: that is, the protection of society.

70. I am satisfied, pursuant to s 5 of the Crimes (Sentencing Procedure) Act that no penalty other than imprisonment is appropriate, and I note in that regard that no submission has been made that any other alternative sentence would be appropriate.

71. Mr Heathcote, on behalf of the offender, has argued that the Court should take into account when providing the sentences in respect of these offences the fact that the offender has already spent time in custody as a result of his earlier offending in 1985. He has cited a number of cases in that regard:

Mill v R [1988] HCA 70; Thorp v R [2010] NSWCCA 261, and Wu v R [2011] NSWCCA 102.

72. In my opinion, although his past period in custody is relevant to take into account in a general way in relation to sentence, the submissions made in respect of those cases by Mr Heathcote are ill-founded. In respect of Mill the totality principle was held to apply where there were offences of the same nature committed in different States about the same time. In respect of Thorp v R. it was where there were two episodes of offences within a month with a significant delay in the charging in respect of the second offence, and in Wu the offender was being sentenced for multiple offences in 2010, where he had been previously sentenced in 2004 for offences being part of the same course of criminal conduct. The totality principle is not relevant in the same manner as it was relevant in those cases. It is however relevant in respect of the individual matters that he is currently before the Court to be sentenced for, noting that they are entirely independent and distinct in time by ten years from the previous offences.

73. As I intend to proceed by way of an aggregate sentence, it is necessary to indicate the indicative sentence in respect of each of the six counts or offences. In respect of Count 1, an offence contrary to s 61O(1) the indicative sentence is one year. In respect of Count 2, being an offence contrary to s 61M(1) the indicative sentence is 18 months. In respect of Count 3, being an offence contrary to s 61O(1), the indicative sentence is 15 months. In respect of Count 4, being an offence contrary to s 61M(1), the indicative sentence is 21 months. In respect of Count 5, being an offence contrary to s 66C(2), the indicative sentence is three years and six months. In respect of Count 6, being an offence contrary to s 66C(2), the indicative sentence is four years.

74. Counts 1 and 2 were the first offences. The distinction in sentence is because of the nature of the different charges and the different conduct alleged in each. In respect of Counts 3 and 4, while they are similar charges to Counts 1 and 2, and in each case concern conduct of a relatively similar kind to Counts 1 and 2, I have provided an indicative sentence that is greater than in respect of Counts 1 and 2 because they are subsequently committed offences in the course of continuing offending. In respect of Count 5 and Count 6, I have distinguished between the offences on the basis that it is in my view appropriate to distinguish between them on the basis that Count 6 is more serious than Count 5, as it involves the offender placing his penis in the victim’s mouth, and to some extent controlling his head movements until such time as the victim gagged and cried, and the offender ceased.

72. I note that I have not referred during the course of these reasons to any impact of the offending on the victim. No Victim Impact Report has been provided to the Court; however it was patently obvious from the victim’s evidence in court, and his reactions from time to time, that this offending has had a significant adverse impact on him which has not ameliorated with time. It is of course an impact: however, that can be reasonably expected to be caused to young children when they are the subject of significant sexual abuse, as here, an impact which has been recognised in various judgments as likely to continue for many years even without specific evidence of that being given. However, that impact is one that can be reasonably taken as within the expected range of impacts in relation to offences of this nature.

73. In setting the aggregate sentence, I have taken into account that were I to be imposing an individual sentence in relation to each offence, I would have provided accumulation, and I have taken into account the principle of totality.

74. Mr McPhillamy, would you please stand.

75. You are sentenced to a term of imprisonment of six years with a non-parole period of four years. As you have been in custody since 13 February 2015, the non-parole period will commence from that date, and you will be first eligible for parole on 12 February 2019. The parole period is two years and will expire on 12 February 2021.

76. I have found special circumstances, which has reduced the non-parole period by six months on the basis of a perceived need for the offender to be the subject of a more lengthy period of supervision in the community than would otherwise have been provided if the statutory relationship was maintained between the non-parole period and the parole period, as well as to more appropriately reflect the sentencing regime that would have applied had these offences been dealt with at a time closer to their actual commission.

77. Mr McPhillamy, I take it that as you have already spent a period of time in custody that you fully understand that your release on parole will depend upon your behaviour while in custody. You have indicated, as has been referred to in the reports, that you are prepared to take part in the Denier’s Program. I would suggest to you that if you wish to be released when first eligible for release, you will need to convince the authorities that you have changed your ways and made efforts to rehabilitate yourself and lower your risk of reoffending. That will only be done, in my view, should you appropriately participate in relevant programs while in custody. If you do not do so, the risk you run is that you will not be released when first eligible for release.

78. Now, is there anything that I have omitted? I don’t expect you, Madam Crown - you know nothing about the matter. Mr Heathcote?

79. HEATHCOTE: No, your Honour.

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Decision last updated: 27 April 2017