R v Peter Geoffrey Rae

[2008] NSWDC 381

CITATION:	R v Peter Geoffrey RAE [2008] NSWDC 381
JUDGMENT DATE:	28 February 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	For the s 61E(1) offence - non parole period of 9 months, balance of term 3 months. For the s 81 offence - non parole period of 6 months, balance of term 3 months. For the first s 79 offence - non parole period of 18 months, balance of term 18 months. For the second s 79 offence and the associated s 32 offences - non parole period of 21 months, balance of term of 21 months.
CATCHWORDS:	CRIMINAL LAW - sentence - buggery, indecent assault on a male and indecent assault charges - additional offences under s 32 of the Crimes (Sentencing Procedure) Act 1999 - pleas of guilty - two victims, both young men - substantial emotional harm caused to victims - offender abused position of trust - offences occurred in context of other offending - offences aged, committed in 1980's - extent to which sentencing patterns at the time the crimes were committed should be taken into account - offender aged 69 and recently diagnosed with bowel cancer at time of sentencing - not a high risk of re-offending but some persisting risk - limited expression of remorse - no criminal record at time of offending, since charge with indecent dealing with child under 12 but no conviction recorded
LEGISLATION CITED:	Crimes Act 1900 s 61E, s 61D(1), s 79, s 81 Crimes (Sentencing Procedure) Act 1999 s 32
CASES CITED:	The Queen v MJR (2002 54 NSWLR 368
PARTIES:	Regina Peter Geoffrey Rae
FILE NUMBER(S):	2007/7174
COUNSEL:	Mr Hoenig for Mr Rae
SOLICITORS:	Mr Stanley for the Director of Public Prosecutions

JUDGMENT

1. I am sentencing Peter Geoffrey Rae for five crimes. (See discussion following [46].) One of the issues is the extent to which I take into account sentencing patterns of the courts at the time that these offences were committed which was in the 1980s.

2. Mr Rae has pleaded guilty to the five crimes. Two of them are the crime of buggery contrary to s 79 of the Crimes Act 1900. Each carries a maximum of fourteen years imprisonment.

3. The third charge is an indecent assault on a male and that is a crime against s 81 of the Crimes Act and carries with it a maximum of five years imprisonment.

4. The fourth charge is an indecent assault charge and that is an offence under s 61E of the Crimes Act and carries a maximum of six years imprisonment.

5. When I am sentencing Mr Rae for one of the crimes of buggery he has asked me to take into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 five additional offences. One of those offences is an indecent assault contrary to s 61E of the Crimes Act and a second is a sexual intercourse without consent contrary to s 61D(1) of the Crimes Act. A third is inciting a person under sixteen to an act of indecency contrary to s 61E(2) of the Crimes Act. The fourth is an offence described in similar terms. The fifth is a sexual assault and committing an act of indecency contrary to s 61E(1) of the Crimes Act.

6. The offences occurred over the years from 1980 until 1985 and involved two victims. Both were young men. In fact one of the young men was a boy when he first became the victim of an offence by Mr Rae.

7. The first victim’s name is X. He was between the ages of eight and thirteen at the time of the offences. Mr Rae was a frequent visitor to the rural property where X lived with his mother and his family. His mother and the offender shared a devotion to the teachings of Sai Baba, an Indian guru. Through that connection Mr Rae became familiar with the family. Mr Rae moved into a property next to the property where X lived. Mr Rae spent a lot of the summer months on the property. In the winter months Mr Rae was employed at Thredbo.

8. The first offence occurred, or at least I should say the first in time, which was the indecent assault against a male contrary to s 81 of the Crimes Act, in 1980. It was winter. X was eight. He went with his family to spend time at the snow. He stayed with Mr Rae. Mr Rae had lodgings at Thredbo where he was employed. One evening during the stay X’s mother and brother were otherwise occupied. Mr Rae asked X to come to his bedroom. They sat on the floor opposite each other. Mr Rae exposed his erect penis and commenced to masturbate himself in front of X. He said to X, “Can you rub me” and took hold of X’s hand placing it on his penis and made X masturbate him for a period of time. He encouraged X. That is the first offence.

9. This offence was not an isolated example. Not only was there another offence committed against X in respect of which I will sentence Mr Rae but it is important to appreciate that those two offences were in the context of other offending. I am not sentencing Mr Rae for those other offences but it is important to refer to them in order to avoid any conclusion that these were isolated examples.

10. The facts agreed to by Mr Rae are that over the next five years from 1980 Mr Rae continued to touch X on the penis. He would also ask X to masturbate him and show him pornographic material. The estimate is that this occurred at least thirty times.

11. Moving on in order of time, the next offences occurred in winter of 1983. They are two of the offences which are on the Form 1. They are the indecent assault at Crackenback and the sexual intercourse without consent at Crackenback between 1 May 1983 and 31 October 1983. As I said it was winter of 1983. X was eleven. Mr Rae had invited him and another boy to stay with him at his ski lodge. X shared an upstairs bedroom with Mr Rae. Each had their own single bed and the other boy slept downstairs. Late one evening X and Mr Rae were alone upstairs. Mr Rae produced a pornographic magazine and started to masturbate in front of X. He asked X to comment on the material. Mr Rae removed X’s trousers and underwear and masturbated him for a period of time. That constituted the indecent assault, however, matters became far worse on that occasion. After a while Mr Rae turned X around so that X had his back to him. Despite X saying, “Don’t put your dick up my bum” X felt a stabbing internal pain in his anus either from Mr Rae’s finger or penis. Mr Rae had proceeded against the protestations of this eleven year old boy to penetrate his anus. It continued for a short period of time.

12. The next offence in time is the fourth count for which I am sentencing Mr Rae. It is the indecent assault against s 61E of the Crimes Act. It occurred in the summer of 1985. By now X was thirteen. He had gone camping with Mr Rae to Salt Water Creek south of Eden. During the journey Mr Rae allowed X to drive his car and also shared marihuana with him. Later that night when they were sleeping in the same tent X woke up to find that Mr Rae had hold of his, X’s, penis and was masturbating him. That was the final assault on X.

13. X did not tell anyone about Mr Rae’s abusive behaviour until about 1986 when he told his mother. His mother confronted Mr Rae. Mr Rae did not deny it. X did not report the offences to any authorities until October 2005.

14. The other offences concern another victim. His name is Y. He lived on a rural property not far from X’s place and presumably Mr Rae’s place. He and his brother became friendly with the X brothers. Y stayed on at least one occasion at the ski lodge in Thredbo. Y was the victim of the two offences of buggery. They both occurred in the summer months of 1983. On the first occasion in summer 1983 Mr Rae took Y, then aged about thirteen or fourteen, to a beach in the Eden area. They went to the sand dunes. Y was dressed in board shorts. He was lying face down on his towel. Mr Rae commenced to rub lotion on his back, then he removed Y’s board shorts and lay on top of him. He penetrated Y’s anus with his penis and moved it in and out for about ten minutes.

15. The second offence of buggery occurred over the same summer. It was about a month later. Mr Rae invited Y to go to the movies at Eden. He picked him up in his car but instead of going to the movies they ended up returning to Mr Rae’s property. They parked in the driveway. Mr Rae asked Y to take off the pants he was wearing then he arranged for Y to bed over a small partition between the front and back seats of the car whilst he, Mr Rae, had anal intercourse with him.

16. After that incident Y had no further contact with Mr Rae. He did not report the matter until 1987 after he had heard that X had made a complaint to the police about the offender.

17. The evidence in this case includes a victim impact statement from X. It is a very articulate document and in my opinion encapsulates in lay terms and from the point of view of a victim the kind of impact on the life of a young person which abuse of this kind from an adult can have over a sustained period of time in the life of that victim.

18. Mr X says that his sexual abuse “has left an internal wound that is for me very difficult to identify and describe, despite more than two decades of trying.” When he examines this aspect of life it brings pain which he is desperate to avoid. He has spoken to many others about his experiences. He does not know how to get rid of the awful feelings which rise up when he thinks about or talks about what Mr Rae did to him. He describes himself as a young boy naturally highly driven, competitive and successful at both sport and school. He then observes that he can “see now that this drive had faded considerably after five years of sexual abuse. Although I have had some academic success, I can see now that I have never regained the energy and determination to succeed that I originally possessed.”

19. Mr X is now thirty-five years old. He says that his personal life has been characterised by an inability to commit. He has had many relationships as an adult. He has been married and divorced. He usually finds himself becoming gradually distant from his partner. Understandably he is concerned that his desire to establish a stable long term relationship and to have a family may never be realised. In a fairly balanced observation Mr X says that it is “impossible to know to what extent this may have been different had I not been abused. I can only state what has occurred, and say that I believe they maybe connected.”

20. Mr X describes Mr Rae as exploiting him, betraying his trust and the trust which the family placed in Mr Rae. He said that the abuse has damaged him in a manner that runs very deep and he thinks it is impossible to completely overcome. He said that he considered Peter Rae his friend. He said he thought he loved and cared for him and put his best interests first. He said he thought Mr Rae liked him for who he was and had time for him and gave him attention based on his assessment of him as a person. Mr X then observes that after twenty years he has gradually come to realise that this was not true. He observes, correctly in my opinion, that the relationship between him and Mr Rae was corrupt. Mr Rae, he says, was motivated by his wish to sexually exploit him. He was groomed for this exploitation. He says that Mr Rae put his desire for sexual gratification before Mr X’s need not to be raped. Mr X said he tried to stop him. He told him not to put his penis into his bottom but he ignored his plea and penetrated him. He had many opportunities to stop abusing him but he never did. It only stopped when he was old enough to resist. I observe that in that regard that the incident referred to there about penetration of his anus is one of the offences which I have taken into account rather than an offence for which I am sentencing Mr Rae.

21. Mr X says that he still carries strong feelings of fear and powerlessness with an overwhelming emotion of sadness. He observes that trust is the most important element for him in any relationship and Mr Rae betrayed that trust as well as deceiving his family.

22. The authorities state that there is no need for evidence of the fact that sexual abuse of children results in damage. This statement by Mr X is, as I said, one which comes from a layman. It is not from a psychologist or a psychiatrist but it is from a victim of this kind of offending behaviour. I adopt the moderate terms used by Mr X when he says that it is impossible to know to what extent his life may have been different but it is clear that his life to date has been seriously and significantly damaged by the behaviour which Mr Rae inflicted upon him. This statement illustrates, in my opinion, graphically the kind of impact which this kind of abusive behaviour by adults can have on the life of their victims.

23. Understandably and correctly in my opinion, Mr Hoenig who appears for Mr Rae agreed that the emotional harm resulting from his client’s offending behaviour so far as Mr X was concerned was clearly substantial.

24. In addition to that emotional harm which I take into account as an aggravating feature under s 21A subsection (2)(g) of the Crimes (Sentencing Procedure) Act I take into account as an aggravating feature that Mr Rae clearly abused his position of trust so far as both children were concerned.

25. I need to make some assessment of the level of objective seriousness of the four offences in respect of which I am sentencing Mr Rae. Mr Stanley, who appeared for the Director of Public Prosecutions, submitted that the acts of buggery were in the middle of the range of objective seriousness. Mr Hoenig whilst acknowledging the seriousness of the offender’s behaviour submitted that they are at the lower end of the range of objective seriousness. I accept Mr Hoenig’s submission in this regard. At the time of listening to the submissions I was inclined to accept Mr Stanley’s proposition. However, Mr Hoenig has made available to me a series of cases which are decisions of the Court of Criminal Appeal from the 1970s and 1980s concerning, amongst other things, the crime of buggery. Some of the offences described in those cases are far more serious than these two isolated instances of penetration by Mr Rae of Mr Y’s anus. Some of the cases for example, involved offenders picking up hitchhikers threatening them with knives or guns and anally raping them in the back of a panel van. Another case involved a group of men sexually assaulting by way of buggery a man whilst he was in custody in a cell. Hence I regard the two offences of buggery committed by Mr Rae as in the lower end of the scale of objective seriousness.

26. I regard the indecent assault on X aged eight as also in the lower end of the range of objective seriousness. It was not accompanied by any violence or threats although a serious factor was the age of Mr X being eight at the time.

27. So too in the same range is the indecent assault committed on X when he was thirteen, although an aggravating feature - I withdraw that. I was going to say an aggravating feature was the smoking of the marijuana but that occurred earlier in the day and did not occur at the same time as the offence. Both were instances of the offender either masturbating the victim or the victim masturbating him on isolated occasions. They are very serious offences but remain, in my opinion, in the lower end of the range of objective seriousness.

28. I turn now to Mr Rae’s personal circumstances. They are set out conveniently in exhibit 1 which is a report from a very experienced consultant psychiatrist, Dr Lester Walton, dated 22 January 2008. Mr Rae was born on 30 November 1938 so that he has turned sixty-nine a few months ago. His father died early, that is when Mr Rae was a teenager. His mother was described as an alcoholic who died some thirty years ago. He was not aware of any history of mental disturbance within the family. He has worked intermittently self-employed as a photographer and a lift operator at Thredbo. He is now described as an aged pensioner.

29. As I said he developed an interest in a spiritual guru in India. That interest developed in 1973. He has visited and spent considerable time in India. He has had reasonably good health until some melanomas were removed some years ago and in 1996 he was diagnosed with bowel cancer. A CT scan in 2007 revealed lesions effecting his liver, possibly secondary cancers, although the psychiatrist thought that they were more likely to be benign blood vessel growths. He has a couple of other general medical conditions which may well be associated with his age.

30. I take into account the following factors as relevant to his personal circumstances and, where relevant, as factors in mitigation. He will turn seventy this year. That does not mitigate the seriousness of the offences but it is a factor which I take into account because his time in prison will be much harder for him at that age. I take into account the recent diagnosis of bowel cancer and the possible secondaries. I take into account that he has pleaded guilty and I propose to allow him, as agreed by Mr Stanley, a full discount of twenty-five percent from the sentences which I propose to impose because of what the law describes as the utilitarian value of those pleas. That means that he has spared the public court system considerable time which would have been taken up in conducting a prosecution for these offences. He has also spared his victims the necessity of confronting a judge and jury and giving an account of what had occurred.

31. He has expressed his shame to the psychiatrist, Dr Walton, but he has not elected to do that under oath or affirmation from the witness box. He has what Dr Walton described as somewhat underdeveloped remorse but the doctor acknowledges that is not uncommon with people who have committed these kinds of offences because of the difficulty in confronting, as a psychological exercise, the behaviour which they engaged in. I accept that that may also account, as Dr Walton thinks, for Mr Rae’s difficulty in recalling details of his abusing behaviour.

32. I accept Dr Walton’s opinion about his risk of re-offending. I regard Dr Walton as more qualified to express an opinion on that topic than the community corrections officer from the Ringwood Community Corrections Services who expressed in a report included in exhibit A that Mr Rae was at high risk of re-offending. I prefer, based on his experience and qualifications, the opinion of Dr Walton that he is not a high risk of re-offending but that there is some persisting risk and therefore the sex offenders programme if available in custody would be prudent.

33. I will take into account Mr Rae’s limited expression of remorse as one of the general subjective features.

34. I have been provided with material and authorities on the question of how I approach this sentencing exercise given the fact that the offences occurred so long ago. I follow the decision of the New South Wales Court of Criminal Appeal in The Queen v MJR (2002) 54 NSWLR 368 and take into account the sentencing practice as at the date of the commission of these offences because the sentencing practice has moved adversely to an offender since then. I have also taken into account the sentencing statistics produced by the New South Wales the Judicial Commission in fixing the sentences which I will impose.

35. The sentencing practices for the offences of buggery and indecent assault on a male and indecent assault are not readily ascertainable but I have gained some assistance from a number of decisions of the New South Wales Court of Criminal Appeal provided for me by Mr Hoenig which date from 1970s and 1980s. I have attempted, in fixing the sentences which I am due to impose on Mr Rae, to take into account the kinds of sentences which were imposed in those days.

36. I also take into account that I am sentencing Mr Rae many years after the commission of the offences but that is because he has not elected to confess his behaviour and the victims have not elected to bring the matter to the authorities. I do not hold that against Mr Rae at all but I do not regard that significant delay as particularly relevant to this case. In particular I accept Mr Stanley’s submission that there has not been demonstrated in this case any agony of mind which Mr Rae underwent over that period of time.

37. I turn now to the sentences which I will impose. I propose to sentence Mr Rae first for the indecent assault committed in 1985 on X when he was thirteen and then for the indecent assault against a male committed by Mr Rae against X when he was aged eight.

38. Just before moving to that stage I observe that Mr Rae had at the time of these offences no criminal record. Since these offences he was evidently charged in Queensland with indecent dealing with a child under twelve but no conviction was recorded and he was released on a recognizance. The following year he was arraigned in a Melbourne Magistrates Court charged with indecent assault and rape as well as gross indecency with a person under sixteen. He was convicted but the proceedings were adjourned for twelve months; there is a notation that at least one or more of those charges was withdrawn but it is difficult to determine which. I do not take those matters into account adversely to Mr Rae.

39. If you would stand up Mr Rae. I am going to sentence you now Mr Rae. For the indecent assault on X, again s 61E(1) of the Crimes Act, I had fixed a penalty of eighteen months with a non-parole period of twelve months, but because of your plea of guilty I have reduced that roughly by twenty-five percent, as it turns out more like thirty percent, to a sentence of twelve months with a non-parole period of nine months. That sentence of twelve months will commence when you went into custody on 6 February 2008 earlier this month at Bega and the non-parole period of nine months will expire on 5 November 2008. The balance of the term is three months from 6 November 2008 to 5 February 2009.

40. For the indecent assault on X, an offence against s 81 of the Crimes Act, I was going to sentence you for twelve months with an eight month non-parole period but instead because of your plea of guilty I will sentence you to nine months with a non-parole period of six months. That non-parole period will commence at the conclusion of the non-parole period for the first offence that is, it will commence on 6 November 2008. It will expire on 5 May 2009. The balance of the term for that sentence is three months commencing on 6 May 2009 and expiring on 5 August 2009.

41. I have decided to accumulate, that is to make consecutive, those two sentences. That is because although they were committed against the same victim they were committed some five years apart. They represent two quite different and distinct instances of offending behaviour against this victim.

42. I turn now to the first of the buggery offences committed against Y. These are offences against s 79 of the Crimes Act. The offence for which I am sentencing you now for is the one which was committed in the car and I was going to sentence you to four years with a non-parole period of two years but because of your plea of guilty I have discounted that by twenty-five percent and I propose to sentence you for three years with a non-parole of eighteen months. That non-parole period will commence on 6 May 2009 that is at the expiry of the non-parole period for the previous sentence and that non-parole period of eighteen months will expire on 5 November 2010. The balance of the term is eighteen months commencing 6 November 2010 and expiring on 5 May 2012.

43. I have made that sentence cumulative, that is consecutive, on the previous two penalties because they represent a completely different episode of criminal behaviour committed against a different victim.

44. Finally I turn to the offence of buggery committed against Y in the sand dunes over the summer of 1983 to 1984. In respect of that offence I take into account all of the offences which you have asked me to take into account which are on the Form 1. I had intended to fix a penalty of five years with a non-parole period of two and a half years but because of your plea of guilty I discount that by twenty-five percent or a little more as it turns out, and I discount it to three and a half years with a non-parole period of twenty-one months. That penalty will be concurrent, that is, run at the same time as the penalty for the previous offence. That is because both offences were committed about a month apart and against the same victim although not part of the criminal episode. I am, because of the accumulation of the previous sentences, inclined to make these two penalties concurrent. Hence the penalty for this offence will be a non-parole period of twenty-one months which commences on 6 May 2009 and expires on 5 February 2011. The balance of the term is twenty-one months commencing on 6 February 2011 and expiring on 5 November 2012.

45. I inform you that the earliest date for your release from custody Mr Rae is 5 February 2011 that is just under three years from now and I should say that is the earliest date for which you will be eligible for release. Whether or not you are released will depend upon the Parole Authority at the time.

46. Have a seat Mr Rae while I check with Mr Stanley and Mr Hoenig as to firstly whether the calculations work out and secondly, whether there are any other orders which I ought to make.

HOENIG: No your Honour I think everything is fine.

STANLEY: Yes your Honour. The only thing I’d like to say your Honour at the commencement of your judgment you indicated that you were sentencing him for five offences, it was probably a slip of the tongue.

HIS HONOUR: It was. I’m sentencing Mr Rae for four offences, two offences of buggery contrary to s 79 of the Crimes Act, one offence of indecent assault on a male contrary to s 81 of the Crimes Act, one offence of indecent assault contrary to s 61E of the Crimes Act.

STANLEY: Yes that’s right your Honour.

HIS HONOUR: The exhibits and the MFIs I will return to my associate to be placed with the file. Can I thank you both for your assistance with this sentence. It has not been straight forward and I’ve had assistance from you both in Bega and since then with your submissions and the material which you have made available to me.

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