R v Peckover

[2020] NSWDC 861

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Peckover [2020] NSWDC 861

Hearing dates:

16, 18 December 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Criminal

Before:

R. J. Weber SC DCJ

Decision:

The offender is sentenced to a term of imprisonment of 9 years, with a non-parole period of 6 years.

The Court directs that such a term of imprisonment shall commence on 11 March 2018, and that the non-parole period shall expire on 10 March 2024, with the balance to expire on 10 March 2027.

Catchwords:

CRIME — Child sex offences — Historic — Indecent assault — Buggery

SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victims — Breach of trust — Vulnerable victims — Substantial harm, injury, loss or damage — Victim impact statements

SENTENCING — Multiple offences — Form 1 offences — Relevant factors on sentence — Deterrence — General deterrence — Specific deterrence

SENTENCING — Subjective considerations on sentence — Hardship — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes(Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Dimian v R [2016] NSWCCA 223 at [49]

Markarian v The Queen (2005) 228 CLR 357 at [51]

R v Fisher (1989) 40 A Crim R 442 at [445]

Category:

Sentence

Parties:

Regina (Crown)
Brien Peckover (Offender)

Representation:

Counsel:
Ms D Daleo (Crown)
Ms S Hall (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid (Offender)

File Number(s):

2018/00051098

Publication restriction:

Pursuant to s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987, the names and identifying information of the persons to whom these proceeding relate and who were children at the time of the offences to which the proceedings relate are not to be published.

Further, pursuant to s 15A(1)(c) of the Children (Criminal Proceedings) Act 1987, the names of any other children mentioned in these proceedings are not to be published.

Judgment

1. The offender comes before the Court for sentence for the following offences, which are historical offences.

1. One count of Buggery. This was at the relevant time an offence contrary to s 79 of the Crimes Act 1900 (NSW) (“Crimes Act”), and carried a maximum penalty of 14 years imprisonment.

2. Six counts of assault male person and commit act of indecency on him (“Indecent Assault Male”). This was an offence contrary to s 81 of the Crimes Act. This offence carried a maximum penalty of 5 years imprisonment.

3. Three counts of assault and commit act of indecency (“Indecent Assault”). This was an offence contrary to s 61E(1) of the Crimes Act, and the offence carried a maximum penalty of 4 or 6 years imprisonment, dependant on the age of the victim being over or under 16 years of age.

2. The offender also asks the Court to take into account the following offences as Form 1 offences, being four instances of Indecent Assault Male. This was an offence contrary to s 81 of the Crimes Act, and carried a maximum penalty of 5 years imprisonment.

Background

3. The procedural background to the sentencing is complex, but can be summarised as follows.

4. On 24 August 2020, the offender was arraigned on an indictment containing 26 counts in relation to five complainants. The offender entered pleas of guilty at that time to counts 13, 14 and 18 (in relation to the complainant known as “SS”) and counts 22 and 23 (in relation to the complainant known as “MS”).

5. A voir dire commenced in relation to the admissibility of two recorded conversations between an Under-Cover Officer (UCO) and the offender. There was also an application by the defence to cross-examine two of the complainants on other sexual experiences. On 27 August 2020, I delivered my rulings in relation to those issues, and the matter was adjourned for trial.

6. On 1 September 2020, the offender was arraigned in the presence of the jury. The offender once again entered pleas of guilty to counts 13, 14, and 18, and counts 22 and 23, but also entered additional pleas of guilty to counts 24, 25, and 26 (in relation to the complainant known as “DS”).

7. At the close of the Crown case, the defence sought a verdict of not guilty by direction in relation to count 21, the sole count concerning the complainant, “CO”. The application was not opposed by the Crown, and, on 10 September 2020, a verdict of not guilty by direction was delivered by the jury in relation to count 21.

8. On 14 September 2020, a verdict of not guilty by direction was entered in relation to count 5, a count relating to the complainant, “GM”. The jury then retired to consider their verdicts in relation to the outstanding counts. On 15 September 2020, the jury returned verdicts of not guilty in relation to counts 1-4, 6-12, and 15-17 on the indictment. The jury returned guilty verdicts in relation to counts 19 and 20. Accordingly, the offender is now to be sentenced for a total of 10 counts in relation to three victims (SS, MS, and DS).

9. The differing times of the guilty pleas raises issues as to the discount, if any, which should be afforded to the offender in respect of those pleas. In respect of the eight counts to which the offender entered pleas of guilty, the three pleas in relation to the victim DS (counts 24, 25, and 26) were late pleas, having been entered on the morning of trial, and the five pleas in relation to counts 13, 14, 18, 22, and 23 were indicated in the Local Court. The Crown accepts that the pleas in the Local Court are early pleas which should attract a 25% discount. I shall proceed to sentence accordingly. In relation to the three pleas which were entered on the morning of the trial, I shall discount those sentences by 10% to reflect the utilitarian value of those pleas.

Fact Finding

10. In relation to the counts in respect of which pleas were entered, the matter proceeded by way of Agreed Facts. I shall shortly summarise those agreed facts, and also make findings as to what facts should be attributed to the jury in relation to the counts in respect of which verdicts of guilty were entered.

Agreed Facts

11. In the late 70s and the early 80s the offender was a volunteer at Charlton Boy’s Home, a residential facility at Ashfield. He assisted residents of the institution by supervising homework, or assisted, when required, in other activities such as taking the boys on outings. The offender was sufficiently trusted by authorities at Charlton that he was given permission to take the residents of the institution on overnight or day trips. The young boys who were residents of Charlton were for relevant purposes, without exception, troubled children who came from either challenging family backgrounds, or through interaction with the Children’s Court, or more usually both.

The Victim, SS

12. SS was born in April 1966. He was a resident at Charlton in the first half of 1978. He was introduced to the offender on his second day at Charlton. SS was told that the offender was a volunteer worker who would tutor boys, and take them out on day leave, or take them out over the weekend.

13. On the second Friday after starting at Charlton, it was approved that SS could stay the offender’s home for the weekend. After school on that day, the offender drove SS first to church at Five Dock, and then to the offender’s parents’ home unit in Drummoyne. The offender’s parents were not home.

Count 13

14. That evening, the offender walked over to SS and sat on the coffee table, next to where SS was standing. The offender unbuttoned and unzipped SS’s shorts, and pulled them down to his knees. The offender lent forward and put his mouth over SS’s penis. The offender moved his head back and forth so that SS’s penis was going in and out of the offender’s mouth. The offender also used his hands to masturbate SS. This lasted for about five minutes until SS experienced what he described as “a funny, tingling feeling.” This offending constitutes count 13.

Form 1 Offence

15. On the following day, after various activities, SS complained of feeling unwell. He went to bed, then got up briefly for his evening meal, and then again retired to bed at 7.30pm. At some point in the evening, the offender entered SS’s room and sat on the bed. SS pretended to be asleep. The offender pulled down SS’s pants and underwear to his knees, stood up, and knelt on the floor next to SS. The offender used his hand to masturbate SS. This offending conduct is the Form 1 offence to be taken into account with count 13.

Count 14

16. After a few minutes of masturbating SS (being the conduct constituting count 13), the offender lent over and put his mouth on SS’s penis. He sucked on SS’s penis while moving his head up and down. This lasted a couple of minutes before SS ejaculated in the offender’s mouth. This offending constitutes count 14.

Form 1 Offence

17. Sometime later in 1978, SS was again scheduled have weekend leave with the offender. SS accompanied the offender to his home unit. At about 9 PM, SS was in the shower. The offender opened the shower door, put his hand on SS’s penis, and masturbated him. He did this for approximately five minutes. This offending constitutes the Form 1 offence to be taken into account in relation to count 14.

Count 18

18. On the same visit, after SS had gone to bed, the offender got into SS’s bed naked, and removed his pyjama pants and underwear. The offender pushed his hips forward so that his penis was between SS’s thighs. The offender reached over the top of SS with his right hand, and grabbed his own penis which was going through SS’s thighs. The offender thrust back and forth, in this fashion, until he ejaculated. This constitutes the offending set forth in count 18.

The Victim, MS

19. MS was born in March 1970. He met the offender at Charlton boy’s home in 1982. The offender was introduced to MS via Care Force, an Anglican charity which operated at Charlton. MS’s mother was a single mother to MS, and to his younger brother, the victim, DS. The offender was introduced to MS and DS’s mother as someone who could act as a father figure to MS (and later DS).

Count 22

20. The offender took MS out of Charlton on a drive in his car. At some point, the offender stopped the car in bushland, and the offender and MS went for a walk along a small creek. After they walked approximately one hundred metres, the offender put down a towel. MS lay on the towel, and the offender removed MS’s penis from his pants and sucked his penis for about 5 to 10 minutes. This offending constitutes count 22.

Form 1 Offence

21. On another occasion, at the offender’s unit after dinner, the offender asked MS if he wanted a massage. MS was told to take off his clothes. He complied. The offender, using oils, then massaged MS’s back. After five minutes, the offender asked MS to turn over, whereupon the offender sucked MS’s penis for a few minutes. Thereafter, he shaved MS’s backside with a razor. This is the Form 1 offence to be taken into consideration with count 22.

Count 23

22. After the offender shaved MS’s bottom, MS could feel the offender “fiddling with his bottom with his penis”. Suddenly, the offender put his penis into MS’s anus, and started thrusting. This caused MS much pain, and he told the offender to stop, which he did. This offending constitutes count 23 on the indictment.

Form 1 Offence

23. Shortly after this incident there was a second incident at the offender’s unit. The offender once again massaged MS’s back, before sucking MS’s penis. This incident is the Form 1 offence in relation to count 23.

The Victim, DS

24. DS was born in December 1971. He is the younger brother of MS. He was the only victim who was not a resident of Charlton or a related boy’s home.

25. DS first visited the offender’s unit in Drummoyne in November 1984 when he was in year six. From that period onwards, the offender took DS to his unit on numerous occasions.

Count 24

26. On a day in early 1985, DS was at the offender’s unit, lying on the bed while looking at adult books. The offender approached DS and began to undress him. He removed DS’s pants and underpants, and told DS “keep looking at the books”. The offender then took hold of DS’s penis and began to masturbate him, until he ejaculated. This offending constitutes count 24.

Counts 25 and 26

27. On an occasion in summer of 1987, DS was at the offender’s unit. In the evening, the offender invited DS to his bedroom. DS went to the offender’s bedroom. The offender indicated to DS that he was to sit on the bed and provided him with adult books. The offender told DS to take of his pants and underpants, which he did. The offender told DS to “look at the books”, whereupon the offender began to masturbate DS. This offending constitutes count 25.

28. While the offender was masturbating DS, he used his left hand to undo his own trousers. He dropped his own trousers, moved to bed, and continued to stroke DS’s penis with his right hand. Using his left hand, the offender took hold of DS’s hand and placed it on his own penis, moving DS’s hands up and down. After a few minutes, the offender stopped masturbating DS, but told DS to continue to masturbate him. This activity continued until the offender ejaculated. This conduct constitutes count 26.

Facts Attributed to the Jury Verdict

Counts 19 and 20

29. Counts 19 and 20 were not the subject of the agreed facts document. The Crown submitted that the following facts should be attributed to the jury from to their verdicts of guilt. These inferred findings were accepted by the offender and can be summarised as follows.

30. The offender maintained contact with SS after he was moved from Charlton to other institutions. Between 26 April 1979 and 24 March 1980, SS was at a residential facility located in Katoomba called Clairvaux. The offender visited SS at Clairvaux and took him on day and weekend leave from the institution. The offender took SS back to his home unit in Drummoyne for weekend leave. On this occasion the offender’s parents were also residing in the unit. The offender and SS attended church at Five Dock. After returning from church, the offender and SS went to use the swimming pool that was attached to the residential unit complex.

Count 19

31. SS was in the change room for the swimming pool, changing into his swimmers, when the offender entered the change rooms. The offender touched SS’s penis, stroking it. This conduct constitutes count 19.

Count 20

32. Thereafter, offender then placed SS’s penis in his mouth. The incident came to an end when they heard someone coming through the gate. This conduct constitutes count 20. SS got his clothes, told the offender he had forgotten the sunscreen, and returned to the unit. SS then left the offender’s unit and ran away. He was subsequently located at Central Railway Station and placed in Royleston Boy’s Home until he could be returned to Clairvaux.

Sentencing Principles for Child Sexual Assault Offences

33. The following are uncontroversial principles in relation to sentencing for child sexual assault matters. They are offences of the utmost seriousness, as can be seen, inter alia, from the maximum penalties which the legislature has seen fit to impose in relation to them. General deterrence is an important consideration, as is personal deterrence. These factors are heightened where the offender is in a position of trust qua the victim. There is no hierarchy of forms of sexual intercourse. Each case must be determined on its facts. The age of the victim at the time of offending is an important consideration in the assessment of objective seriousness. If the offence has as an element a date range, the age of the victim within that range is important. The Court can, and should, take into account the child’s particular vulnerability. The offender did not put these propositions in dispute.

Consideration of Objective Seriousness of Offending

Objective Seriousness of Offences Concerning SS

Indecent Assault Male (counts 13, 14, 18, 19, and 20)

34. As I have indicated, the offence of Indecent Assault Male carries a maximum penalty of 5 years imprisonment. Consent is not an element of the offence. The Crown submitted that the seriousness of the offence is aggravated, however, where there is in fact a lack of consent.

35. The Crown submitted that the Court should be satisfied beyond reasonable doubt that SS did in fact not consent to the conduct. This contention is disputed by the offender, who points to the fact that the agreed facts are silent as to the issue of consent. The Crown accepts this, but submitted that I should infer lack of consent from the circumstances, including the relationship between the offender and SS. I would have little difficulty in accepting the Crown’s contention if the matter was to be determined on the balance of probabilities, but given that that submission involves a finding against the offender’s interests, it must be established beyond reasonable doubt. In my view, there is insufficient evidence from which I can draw the inference, for which the Crown contends, to the requisite standard of proof.

36. Age is not an element of the offence. The Crown submitted that the seriousness of the offence is aggravated where the offence is committed against a child. I accept this submission, which was not disputed by the offender. SS was born in April 1966. At the time of the commission of the conduct which gives rise to counts 13, 14 and 18, SS was aged approximately 11 or 12 years of age.

37. The conduct in relation to each count occurred in the home of the offender on an occasion when SS had been released from Charlton into the care of the offender. The Crown submitted that all offences against SS constituted a gross breach of the authority and trust given to the offender. Further, it submitted that this was conduct was perpetrated against a particularly vulnerable victim, not merely because of his age, but also because of his personal circumstances. This reference to personal circumstances was a reference to the fact that the victims, SS and MS, were discharged into the care of the offender from Charlton where they resided, either because of interaction with the Children’s Court, or due to difficult family circumstances, or both. The offender did not demur from this proposition. This concession was well made, as the particular vulnerability of the victims of the offender, who was entrusted with their care, could not, in my view, be gainsaid.

38. The conduct in relation to counts 19 and 20 occurred in the change room of the swimming pool in the offender’s unit complex, at a time when SS had been released on leave from Clairvaux into the care of the offender. At the time of the commission of these offences, SS was 12 years of age.

39. The Crown submitted that when regard is had to all the circumstances of the offending conduct, each of the offences falls to be categorised as being within the upper range of objective seriousness for offences of this kind. The offender submitted that the conduct should be considered as falling within the mid-range of objective seriousness. In my view, the issues of breach of trust and vulnerability to which I have referred are very significant and place the offending somewhat above the mid-range.

40. Further, in relation to SS, the Crown submits that the emotional harm caused by the offences was substantial as an aggravating factor pursuant to section 21A(2)(g) of the Crimes(Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”). The offender’s submission was that while accepting that offending of this nature has very serious deleterious effects on victims, which effects are likely to be enduring, there was no basis for concluding that the effects on the victims were more severe than might be expected and thus inherent in the offence. I accept this submission.

Form 1 Offences

41. As I have previously indicated, the offender asks that when being sentenced in relation to count 13 the Court take into account an additional offence of Indecent Assault Male, and when being sentenced in relation to count 14 that the Court also take into account an additional offence of Indecent Assault Male.

41. In respect of each of the Form 1 matters with which I am asked to deal, I shall take these matters into account and increase the sentence which I would otherwise have imposed in relation to the offence the subject of the count, to reflect both the need for personal deterrence, and also the community’s entitlement to extract retribution for serious offending.

Objective Seriousness of Offences Concerning MS

Indecent Assault Male (count 22)

43. As I have earlier indicated, MS was born in March 1970. At the time of the commission of the conduct which gives rise to count 22, the victim was aged 11 or 12 years of age. The victim’s mother had entrusted the offender with the victim’s care. As I have indicated, the offender was introduced to the victim’s mother as a person who could act as a father figure to her sons. The Crown submitted that the conduct in the circumstances constitutes a gross breach of this trust.

44. The Crown adopted the same submission in relation to this issue as was made in relation to SS. That is to say, the offending constituted conduct committed against a particularly vulnerable victim, not only because of his age, but also because of his personal circumstances. I accept that this is the case, for the same reasons as caused me to accept the submission in relation to SS.

Form 1 Offence

45. The offender also asks that the Court take into account an additional offence of Indecent Assault Male on a Form 1 when the victim was aged 11 or 12 years of age. Which I do.

Offence of Buggery (count 23)

46. As I have indicated, the offence of buggery carried a maximum penalty of 14 years imprisonment. It should be noted that lack of consent is not an element of this offence. As such, the offence is committed even in circumstances where both parties consented. The Crown submitted that the seriousness of the offence is aggravating where there is in fact a lack of consent. The Crown submitted that I should be satisfied beyond reasonable doubt that MS did not consent to the conduct. The offender disputed that on a submission that there was a basis for so finding beyond reasonable doubt. For the same reasons outlined in respect of SS, I accept this submission.

47. The Crown went on to submit that, as age is not an element of the offence, the seriousness of the offence is aggravated where the offence is committed against a child. At the time of the offending, MS was a child aged 11-12 years of age. This was accepted by the offender.

48. Further, the offence was committed in circumstances where the care of the victim had been entrusted to the offender by the victim’s mother, the offender having been held out to the victim’s mother as someone who could act as a father figure in the absence of MS’s father. This was also accepted by the offender.

49. In summary, the Crown submitted that I should accept that the offences committed against MS constituted a gross breach of trust, and were offences committed against a particularly vulnerable victim, not only because of his age, but also because of his personal circumstances. The Offender did not demur from this contention, which I accept.

50. The Crown submitted that when regard is had to all the circumstances of the offending conduct, each of the offences against MS falls within the upper range of objective seriousness for offences of this kind. The offender contended that the offending fell to be determined as being within the mid-range of objective seriousness. For the same reasons set out in respect of the victim SS, I consider that the offending is to be characterised as somewhat above the mid-range.

Form 1 Offence

51. As I have earlier indicated, the offender also asks that the Court take into account an additional offence of Indecent Assault Male on a Form 1 when the victim was aged 11 or 12 years of age. I shall do so, and I shall deal with the offence in the same manner as previously indicated.

Objective Seriousness of Offences Concerning DS

Indecent Assault (counts 24, 25, and 26)

52. DS was born in December 1971. At the time of the commission of the indecent assault, which is the subject of count 24, he was 13 years of age. Accordingly, the maximum penalty for the offence is 6 years, the victim being under the age of 16 years of age. DS turned 16 within the date range averred in relation to counts 25 and 26. Accordingly, the offender is entitled to be sentenced on the lower maximum penalty, that is to say 4 years imprisonment.

53. Each of the offences occurred in the offender’s unit at a time when DS had been entrusted into the care of the offender by the victim’s mother. The Crown again correctly submitted that the conduct constituted a gross breach of that trust. The offences were also committed against a particularly vulnerable victim, not only because of his age, but also because of his personal circumstances.

54. The offender did not demur from the proposition that the victim was vulnerable, and that the offending constituted a breach of trust, but pointed out nonetheless that DS was not a resident of Charlton or any other Boy’s Home. I do not consider this to be a material consideration. DS was also entrusted into the offender’s care by his mother on the basis that he was so trustworthy that he had been introduced to her as a person who could act as a father figure to her sons.

55. The Crown submitted that when regard is had to all the circumstances of the offending conduct, each of the offences involving DS falls within the upper range of objective seriousness for offences of this kind. I do not accept that this is the case. The offender contended that the offending fell to be considered as at the lower range of objective seriousness. I also do not accept this submission. The elements of breach of trust and vulnerability lead me to consider that the offending should be considered slightly below the mid-range.

Considerations Common to Offences in Relation to all Victims

Lack of Violence

56. The Crown submitted that while the conduct was not accompanied by acts of violence, the authorities make clear that a lack of aggravating factors, such as violence, does not mitigate the objective seriousness of the offending. I accept that this is the case.

Sentencing for Historical Offences

57. As these offences are historical child sexual offences, pursuant to section 25AA of the Sentencing Act I must sentence an offender in relation to child sexual offences in accordance with the sentencing patterns and practices as in place as at the time of the sentencing. Child sexual offences include offences under Part 3 of the Crimes Act, or an offence under a previous enactment that is substantially similar to offences under that Part, committed against a victim who was under the age of 16.

58. In relation to the matters before the Court, the victims, SS and MS, were under 16 at the time the offences were committed against them. In relation to DS, he was 13 years of age at the time of the commission of count 24, and turned 16 within the date range averred in relation to counts 25 and 26.

59. In accordance with s 25AA(3) of the Sentencing Act, when sentencing for child sexual offences I 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 the courts).

Impact on Victims

60. Various authorities of the Court of Criminal Appeal make clear that child sexual offences can and do have profound and deleterious effects upon victims for many years. This includes a high risk of psychological damage to the victims.

61. The moving victim impact statements of the victims have sadly demonstrated that the risks to which I have referred have come home in the present cases. These victim impact statements are necessarily personal, and I do not believe it is either necessary or appropriate to recount them here.

The Offender’s Subjective Circumstances

62. The offender is 69 years of age, having been born on 23 March 1951. Prior to his arrest, he was living in Queensland with his wife and a son who is 9 years of age. Unfortunately, the offender’s son suffers from Autism Spectrum Disorder. The child is non-verbal and requires a significant level of support.

63. Throughout his life, the offender has struggled with reading and writing, difficulties that he refers to as ‘dyslexia’. For that reason, he has always considered himself to be more a visual person, better able to communicate through pictures rather than words. His ability to account for himself verbally is something that he has struggled with his entire life.

64. The offender had a long history of working in the transport industry, having been employed for lengthy periods of time as both a bus and train driver. He has been medically retired since 1999, after suffering a number of heart attacks.

65. Since his retirement, the offender has been involved in the illustration of the Scripture. He is someone who has maintained a lifelong involvement with the Church. Before going into custody, he was also involved with the Salvation Army.

Criminal History

66. At the time of this offending, the offender did not have a history of prior convictions. His criminal history, however, indicates that there has been offending subsequent to this offending, which offending involved sexual offences in relation to children.

Prospects of Rehabilitation and Likelihood of Re-offending

67. The offender submitted that as the offending occurred some 30-40 years ago, and given the age of the offender now, these are factors which would militate against the likelihood of further offending. He did accept however, that he has offended in the time since these offences occurred. As I have indicated, this offending involved sexual offences against children. The offender accepted that this fact can reflect on his rehabilitation prospects and the likelihood of him committing further offences. However, he submitted that the subsequent offending also occurred some time ago, and on that basis alone, there has been a significant passing of time since there has been any offending. This, it was said, was indicative of some prospects of rehabilitation.

68. The offender further submitted that his admissions concerning the victim SS demonstrated an insight into his offending, and bodes well for his prospects of rehabilitation. It was also submitted that the fact that some of these admissions happened in the context of his participation in the custody-based sex-offender treatment program known as “CUBIT”, was indicative of his level of engagement in the program, and the genuine nature of this engagement.

69. I do not accept that the offender’s prospects of rehabilitation are as submitted by him. In that regard, I note that the offender has been diagnosed by a psychiatrist, qualified on his behalf, as suffering from Paedophilic Disorder. The psychiatrist, Dr Sidorov, describes his risk of reoffending, somewhat enigmatically, as “at an average risk compared to other sex offenders”.

70. My view is that the offender’s prospects of rehabilitation are at best to be described as “guarded”. I consider his prospect of reoffending as above the medium range, even taking into account his age.

Hardship to Others

71. The offender has a wife and child who live in Queensland. The offender was living with them before his arrest in February 2018. The offender’s son is 9 years old and as I have earlier indicated is suffering from Autism Spectrum Disorder. In a letter from Dr Johanna Holt, Paediatrician, dated 15 October 2020, Dr Holt confirms that the child is “non-verbal, he is intellectually impaired and behaviour is becoming increasingly difficult to manage and increasingly aggressive”. Dr Holt observes that “[The child’s] behaviour and now his physical size and aggression is becoming tremendously difficult to manage and challenging for [the child’s mother]. He is easily frustrated; he is oppositional and can become violent.”

72. The offender’s wife has a degree of support in the form of a number of different types of support workers, however she lives alone with her son, and has to manage him and his behaviour on her own, in her husband’s absence. Before he was arrested, the offender was involved in the day-to-day care and the activities of his son, in particular, being responsible for dropping the child to school and picking him up again.

73. The offender says that the hardship on his wife and son occasioned by his incarceration ought to be brought to account in the sentencing process to reduce both the head sentence, and the non-parole period of any sentence which the Court might otherwise impose.

74. The authorities make clear that the sad reality is that imprisonment almost always imposes hardships on persons other than the incarcerated offender. What is required before such hardship can be brought into sentencing synthesis is that the hardship concerned can by justly characterised as being “highly exceptional”. To my mind, the hardship to the offender’s wife and son, which I acknowledge, cannot be so described.

75. The offender submitted that if hardship was not taken into account in relation to the head sentence, I should bring it to bear in the sentencing synthesis as a special circumstance for the purposes of s 44 of the Sentencing Act. The Crown submitted in effect that the effect of the authorities was to preclude any consideration of third-party hardship, unless the high threshold of exceptionality, to which I have earlier referred, was present. That, the Crown submitted, included considering the issue within the rubric of special circumstances. I agree with this submission and will not take this factor into account as a special circumstance.

Delay

76. The length of time between the date of offending and the date of trial and sentence was considerable. In this regard, the Crown referred me to authorities which established the proposition that such delays were common in relation to offending of this nature, and as such, should hold little weight as a factor in mitigation of penalty. Ms Hall of counsel, who appeared for the offender, as I understood her position, accepted that the Crown’s submission in relation to delay between offence and sentence in respect of the victims DS and MS.

77. Ms Hall submitted however that the position qua SS was different in relation to whom the offender was first investigated a significant time ago, and in respect of whom certain admissions were made to police. Delay in relation to SS, to my mind, is difficult to bring to bear in the sentencing synthesis. The first matter to note in that regard is that it was always open to the offender to bring all of his wrong doings to the attention of authorities. Secondly, even if it can be assumed that had he been charged much earlier, his sentence may well have been served by now, the countervailing consideration is that the offender has enjoyed the benefit of his freedom for a very long time, at a tolerably youthful age, and without the social opprobrium which will attach to these convictions. I note, for example, that the offender married in 2010, and has fathered a child. It is impossible to know what the effect of an earlier sentence would have had on those fortunate life events. Similarly, it is impossible to know how an earlier disposition of the SS charges would have interacted, if at all, with the sentencing for the subsequent child sex offences.

78. In summary therefore, to my mind, I approach the matter on the basis that the sentence in relation to SS was always going to have to be served. I am far from convinced that the offender has suffered any particular prejudice from serving that sentence primarily in his seventies, compared to serving it in middle age. Accordingly, I do not take delay into account in the sentencing process.

Personal and General Deterrence

79. It was common ground that personal and general deterrence are important considerations in the sentencing synthesis.

80. The offender submitted that the need for personal deterrence in his case was reduced by his age. This submission was obviously related to the offender’s submissions on his prospects of rehabilitation, and his risk of reoffending. As I have earlier indicated, I do not agree with the offender’s optimistic submissions in relation to those issues. Thus, I do not see that the offender’s age reduces the need for personal deterrence. The need for general deterrence could not be gainsaid, and in fairness, Ms Hall, for the offender, did not submit to the contrary.

81. The seriousness of offences such as those which bring the offender before the Court has been highlighted in many authorities. To give but one example, in R v Fisher (1989) 40 A Crim R 442 at [445], the Court said:

This court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations …

This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults …

82. As can be seen, the Court saw fit to describe acts of the type which bring the offender before the Court as “evil”. To my mind, the adjective “evil” is an amply appropriate one to use to describe the conduct of the offender.

83. The offender’s victims were to his knowledge particularly vulnerable, for the reasons which I have already explained. By his actions, he placed himself in a position of trust and authority in relation to them. His victims were entitled to expect that the offender would care for them. They were entitled to expect that he would provide guidance to them. They were entitled to expect that they could look up to him, to provide a good example as a responsible male figure in their lives. These legitimate expectations were cruelly dashed by the offender, who abused his position of trust and authority over them for the purposes of his own perverse sexual gratification. The offender’s conduct deserves the Court’s and the Community’s resolute and unequivocal denunciation.

Special Circumstances

84. The offender submitted that even if I was against his contention as to third party hardship as a special circumstance, that I should make a finding of special circumstances, on the basis of his age at the time of his likely release from custody. This was put on the basis that upon release, given his age, he will require a significant level of support to reintegrate into the community. This submission continued that such reintegration would be assisted by a lengthy period of parole supervision. The Crown did not demur from that proposition. I propose to take this matter into account as a special circumstance.

Gaol the Only Option

85. It was not in dispute between the parties that gaol was the only conceivably appropriate punishment. This could hardly be gainsaid, and I unhesitatingly accept that this is the case, and so find for the purposes of s 5 of the Sentencing Act.

Time Served

86. The offender was arrested on these charges on 28 February 2018. He remained in custody until 9 March 2018, when he was released to bail. The offender returned to custody on 21 March 2018 and has remained in custody until the present date.

87. He has thus been in custody for a total of 1014 days. The sentence which I shall impose will take this period in custody into account.

Aggregate Sentence

88. As the offender is to be sentenced for 10 offences committed against 3 victims, with a further four counts to be taken into account on attached Form 1’s, the Crown submitted that a degree of accumulation must be imposed to recognise the distinct acts of criminality perpetrated against each victim by the offender. I accept this submission, which in fairness was also accepted by the offender . I propose to give effect to considerations of accumulation and totality by imposing an aggregate sentence. Accordingly, I formally indicate that such a sentence is being imposed (s 53A(2)(a) Sentencing Act).

Indicative Sentences

89. I am also required to indicate the sentences that I would have imposed for each offence, had separate sentences been imposed rather than an aggregate sentence (s 53A(2)(b) Sentencing Act).

90. In setting forth the following indicative sentences and the aggregate sentence, I have taken into account the matters set forth earlier in these Reasons in relation to the objective seriousness of the offences. Aggravating and mitigating factors to which I have referred have also been taken into account.

91. As to the discount for the early pleas in relation to counts 13, 14, 18, 22, and 23, this discount has been applied to each indicative sentence and thus derivatively to the aggregate sentence (with rounding down certain circumstances to the offender’s benefit).

92. Similarly, a discount of 10% has been applied for counts 24, 25, and 26 in order to reflect the utilitarian value of the guilty pleas entered by the offender upon arraignment at trial.

93. As I have indicated earlier in these reasons, the four Form 1 offences have been taken into account in relation to counts 13, 14, 22, and 23 respectively.

94. In arriving at both the indicative sentences and the aggregate sentence, I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51].

95. The following indicative sentences are head sentences (Dimian v R [2016] NSWCCA 223 at [49]) and are as follows:

In relation to offences against the victim SS:

1. Count 13 (Form 1 attached)      2 years 4 months

2. Count 14 (Form 1 attached)      2 years 4 months

3. Count 18               1 year 6 months

4. Count 19               1 year 6 months

5. Count 20               2 years 6 months

In relation to offences against the victim MS:

1. Count 22 (Form 1 attached)      2 years 4 months

2. Count 23 (Form 1 attached)      6 years 9 months

In relation to offences against the victim DS:

1. Count 24               1 year 4 months

2. Count 25               10 months

3. Count 26               1 year 1 month

96. Brien Peckover, stand.

1. You are sentenced to a term of imprisonment of 9 years, with a non-parole period of 6 years.

2. I direct that such a term of imprisonment shall commence on 11 March 2018, and that the non-parole period shall expire on 10 March 2024, with the balance to expire on 10 March 2027.

**********

Amendments

08 March 2021 - Corrected typographical error at paragraph 19 as to year of birth of the victim MS

Decision last updated: 08 March 2021