R v RH

[2024] NSWDC 379

District Court

New South Wales

Medium Neutral Citation:

R v RH [2024] NSWDC 379

Hearing dates:

1 August 2024

Decision date:

16 August 2024

Jurisdiction:

Criminal

Before:

Coleman SC DCJ

Decision:

(1) For the offence to which he pleaded guilty the offender is convicted.

(2) Pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed for the offence is to be served by way of a Community Corrections Order.

(3) The Community Corrections Order imposed is for a period of 2 years, commencing 16 August 2024 and expiring on 15 August 2026.

(4) The standard conditions for a Community Corrections Order apply:

(a) the offender must not commit any offence; and,

(b) the offender must appear before the Court if called on to do so at any time during the term of the orders.

(5) The following additional condition applies:

(a) a supervision condition requiring the offender to submit to the supervision of the office of community corrections for so long as that service deems necessary during the terms of the order.

(6) If the offender fails to comply with the conditions of this order, further action may be taken against him. This may require him to return to court to be re-sentenced.

Catchwords:

CRIME — Sexual offences — Indecent assault --- Historical offences against victims under 16 years of age by priest of the Catholic Church

SENTENCING — Relevant factors on sentence — Delay --- Impact of delay on principles of totality and proportionality, considering previous period spent in custody – Imposition of Community Corrections Order

SENTENCING — Subjective considerations on sentence — Age of offender --- Advanced age which would make custody more onerous --- consideration of advanced age on need for general and specific deterrence

SENTENCING — Subjective considerations on sentence — Health issues --- Health concerns which would make custody more onerous

Legislation Cited:

Crimes Act 1900 (NSW), s 76

Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 5, 8, 21A(2)(eb), 21A(2)(k), 21A(3)(k), 21A(5A), 25D, 25AA

Cases Cited:

R v Catell [2019] NSWCCA 297

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146

Richards v R [2023] NSWCCA 107

R v Obbens [2022] NSWCCA 109

Texts Cited:

Nil

Category:

Sentence

Parties:

Director for Public Prosecutions (NSW) (Crown)
RH (Offender)

Representation:

Counsel:
Ms E Sullivan (Forbes Chambers)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Barker Evans (Defence)

File Number(s):

2023/00159358

Publication restriction:

Pursuant to s 578A Crimes Act 1900 (NSW), there is to be no publication of any matter that identifies or is likely to lead to the identification of the victim in this matter.

JUDGMENT

1. The offender, RH, is to be sentenced today for one offence, namely, indecent assault of a female under 16 years, an offence under s 76 of the Crimes Act 1900 (NSW) (Sequence 2). This has a maximum penalty of 6 years imprisonment. There is no standard non-parole period.

2. There are three matters attached on a Form 1 to sequence 2, being three offences of indecent assault of a female under 16 years (Sequences 1, 4 & 5). Each is an offence under s 76 of the Crimes Act. As a result of when these offences were committed, Sequence 1 carries a maximum penalty of 5 years imprisonment, whereas Sequences 4 & 5 carry a maximum penalty of 6 years imprisonment. There is no standard non-parole period for any of these three offences.

3. The offences occurred many years ago. Sequence 1 occurred in 1974. Sequences 2, 4 and 5 occurred between 1977 and 1979. As stated, the offences are of indecent assault under s 76 of the Crimes Act as it then was. I have stated the maximum sentences.

4. Despite the offences being historic in that sense, I must sentence the offender in accordance with sentencing practices and patterns at the time of sentence: s 21B Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSPA’). I must have regard to the maximum penalty for the offence (at the time of the offending) as a statutory yardstick or guidepost to which the seriousness of the offending is to be regarded.

5. I must also sentence the offender having regard to s 25AA CSPA. An indication of how sentencing in this situation should be undertaken can be seen in R v Catell [2019] NSWCCA 297. Section 25AA CSPA provides that the Court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing. I acknowledge the trauma caused to the victims in this case and will return to this issue.

Agreed Facts

6. There are agreed facts between the parties. What follows is a summary of those facts.

Background of the offender

7. The offender was born on 23 February 1945. He was formerly a Catholic Priest.

8. Relevantly, the offender was an Assistant Priest at the St Aloysius Catholic Church, Cronulla between late 1972 and late 1975. He was also an Assistant Priest at the St Joan of Arc Catholic Church, Haberfield between late 1975 and early 1979. These churches were located in close proximity to St Aloysius Catholic Primary School and St Joan of Arc Catholic Primary School respectively.

9. The victim in relation to sequence 1, MS, was born on 10 May 1964. In 1971, MS started year 2 at St Aloysius Catholic Primary School.

10. The victim in relation to sequences 2, 4 & 5, CW, was born on 19 May 1965. CW started kindergarten at St Joan of Arc Primary School in 1971.

Background of offending relating to MS

11. MS’s family would attend mass at the St Aloysius Church every Sunday and would regularly have local priests to their house for dinner, which included the offender. While the offender was at her family’s residence, he would pull MS onto his lap at the dining table in the presence of her family. On one occasion, he rubbed his hands up her back and legs.

12. From around 1973, the offender would see MS at school every day. MS would often walk around holding his hand, and MS recalls feeling like the offender’s ‘special girl’ because of the close attention he paid her.

13. In 1974, when MS was 9 years old, she was chosen to be the offender’s ‘helper’, which required her to leave class and go to the presbytery to complete jobs for the offender.

14. On one occasion, when MS walked into the presbytery, she saw the offender standing in the shower naked. The offender had an erection, and said to MS “Have you seen a man’s thing before? This is called a tossel and yours is called a nini.” MS was embarrassed and wanted to leave.

Indecent assault of a female under 16 years (Sequence 1 – Attached on a Form 1)

15. The next thing MS remembers is being on the bed in the presbytery and not being able to get up. Her dress was pulled up and her underwear was down. The offender’s head was between her legs and he was penetrating her vagina with his fingers.

16. The offender was angry and said “you made me do this. This is your fault. God is going to punish you and your family. I’m a priest and I’ve got to tell.” At some point MS walked out of the presbytery but does not recall how this happened.

Background of offending relating to CW

17. CW and her family would attend mass at the St Joan of Arc Catholic Church each Sunday. Her father ran the church choir and her mother sang in the choir. Her father also did the Church’s electrical repair work, and CW’s parents often had priests over to their house for dinner or tea.

18. CW first met the offender when he visited her family home. The offender’s interest in CW built gradually, progressing from hugging her to moving his hands towards her crotch while he was hugging her.

Indecent assault of a female under 16 years (Sequence 2)

19. On one occasion, when CW was in her bedroom, the offender placed one hand straight down into her pants. The offender touched CW’s vagina underneath her pants and underwear and inserted one finger into her vagina. The offender’s finger penetrated the entrance to her vagina, and he moved his finger around the entrance to her vagina for some time.

Indecent assault of a female under 16 years (Sequence 4 – attached on a Form 1)

20. On a separate occasion, the offender came into CW’s bedroom, put his hands around her waist and then put his hands down her pants into her underwear. The offender’s fingers touched the outside of her vagina but did not penetrate her vagina. This incident was very quick, and the accused took his hand straight back out and then left CW’s room.

Indecent assault of a female under 16 years (Sequence 5 – attached on a Form 1)

21. On another occasion when CW was in the offender’s room in the presbytery, the offender was sitting at his desk when CW entered. He walked to CW and put his arms around her, and then put one hand down her pants or skirt and touched CW’s vagina underneath her underwear and clothing. The offender inserted one finger into the entrance of CW’s vagina and moved his finger around the entrance of her vagina for a few seconds before removing his finger.

Arrest

22. The offender was arrested on 18 May 2023 and conveyed to Granville Police Station, where he declined to participate in an electronically recorded interview with police.

Objective Seriousness

23. All sexual offences against children are serious. The offence for which the offender is being sentenced (sequence 2) involves the abuse of the victim by digital penetration of her vagina.

24. The offender’s counsel submitted that s 76 of the Crimes Act, as it was at the time of the offending, encompassed a very broad range of conduct. That is true, but the conduct involved here was digital penetration of the child’s vagina. I regard this as being one of the most serious examples of the type of conduct caught by this section as it was. Counsel submitted that the offending fell below the mid-range having regard to a range of factors. I will deal with each in turn:

1. The offending conduct did not continue for an extended period. This is true - however, it is difficult to make any finding as to the duration of the offending by reason of the victim’s absence of a complete memory of the offending conduct.

2. There was no force or violence involved (over and above that necessary to constitute the element of assault in the s 76 offence). I accept this, however, the presence of force or violence may be thought to aggravate the offending rather than its absence being a mitigating factor.

3. There was no physical harm. This can be accepted.

4. There was no accompanying emotional manipulation or coercion, for example use of guilt or fear to compel the victim’s compliance or subsequent silence. Whilst it is true that no threats were made, or evidence of entreaties to the victim to remain silent for fear of consequences, I do not regard this factor as having significance in the assessment of the objective seriousness of the offending. It is accepted by counsel for the offender that, as noted with the statutory aggravating features I will deal with below, the offending took place in the context of a gross abuse of trust by the offender. He was a priest who the victim looked up to and trusted. He had made her feel special by his treatment of her. He had access to her by reason of his contact with her as a priest, including visiting her family home.

5. There is no evidence of planning. This can be accepted.

6. The victim was aged between 11 and 14 – being towards the higher end of the age range to which the section applied. This can be accepted.

25. The Crown submits that there was a significant difference in the age between the offender and the victim. He exploited her youth. Further, it was submitted that the character of the acts involved and the factual matrix as a whole make this a serious example of this type of offending. The Crown submitted the offending falls above the mid-range.

26. I consider the circumstances of the offending make this a serious example of this type of offending. As I have said, it involved digital penetration of the victim’s vagina. It must have been a terrifying and traumatic experience for the victim.

Aggravating / Mitigating Factors

27. The offending is aggravated by reason that it occurred in the home of the victim where she ought to have been able to feel, and be, safe - s 21A(2)(eb) CSPA. The offender exploited his visit to the victim’s family to obtain access to her for his perverted sexual desires. Further, the offending is aggravated by the fact that the offender was in a position of trust and authority in relation to the victim - s 21A(2)(k) CSPA. He was her priest and she obviously trusted him. He grossly abused that trust.

28. There was some debate in the written and oral submissions that the Court should expressly find that the unique circumstances where the offender enjoyed the confidence of the victim and her family whilst exerting influence over them meant that he abused both the trust and authority he had. I do not think this issue needs to be determined, nor that it would further significantly aggravate the offending. It is significant enough, in my view, that the appropriate sentence takes into account the aggravating factor of the breach of trust resulting from the position enjoyed by the offender in relation to the victim as I have sought to explain it.

29. As to mitigating circumstances, the offender pleaded guilty - s 21A(3)(k) CSPA. By reason of that plea being at the earliest opportunity, he is entitled to a 25% discount on the sentence to be imposed - s 25D CSPA.

30. In terms of remorse, I am satisfied the offender has shown genuine remorse. He has done so in letter to the Court read on the sentence proceedings and, significantly, in a taped pretext call between him and the victim. He was, as is usually the case, unaware that this call was being recorded. In it he volunteered to the victim that he takes full responsibility for his actions, that she was blameless with regards to those actions and that he was truly sorry for them. He has also expressed remorse to Dr Nielssen.

31. I will return to the offender’s prospects of rehabilitation and risks of re-offending after considering his subjective circumstances.

Subjective Circumstances

32. The offender relies on a number of sources of information to outline his subjective circumstances.

Report of Dr Olav Nielssen – 30 January 2023

33. The report of Dr Olav Nielssen is dated 30 January 2023.

Background

34. The offender was born on 23 February 1945. He was the eldest of five children and grew up in Punchbowl in a stable family environment. He had wanted to become a priest since the age of 9 and was ordained in 1968. He worked in a number of Churches throughout his time as a priest. He currently remains in contact with a small number of friends and relatives.

35. The offender confirmed that he had served around 5 years of prison time for previous matters, and wore an ankle monitor for several years prior to his imprisonment.

36. The offender had entered pleas of guilty to similar offences in 2001, for which he had received a suspended sentence. He left Parish work in the late 1990’s and had not had public ministry since then, and he later resigned his position as a Catholic priest. Since initial complaints made against him, he attended individual counselling sessions with Associate Professor Alex Blaszczynski and had completed the Encompass course set up to treat ecclesiastic sexual offenders.

37. The offender said he did not have any memory of the female victims or offences described in the agreed facts, but had entered pleas of guilty based on his past behaviour. He praised the victims for their bravery in coming forward with their complaint. Regarding his emotional state during the years in which the offences took place, the offender states that he was not depressed, and although he was upset with himself when he offended, he would ignore that feeling the next time he offended.

38. The offender states that he does not understand why he offended, and assumed his behaviour was some kind of addiction, considering he grew up in a stable family and did not have any earlier events in his life which he could link to attraction to female children. The offender suggests that he was not sexually abused as a child, and had avoided female company from the age of when he decided he wanted to become a priest. He states he did not have difficulty with his vow of celibacy, but realised he was attracted to female children at an early age.

Psychiatric History

39. The offender reported a family history of psychiatric disorder, but understood that his early physical and intellectual development was normal and did not report any contact with mental health services when he was younger. His first experience of any kind of counselling was meetings with his spiritual director, although it was with Professor Alex Blaszyzynski in 1994 which was his first counselling in regard to sexual matters. He was not prescribed any medication and has not reported requiring any mental health care besides seeing a psychiatrist once while he was in Nowra Correctional Centre. He suggests that he does not currently suffer from suicidal ideations or depression.

40. Between the period of seeing Professor Blaszczynski and commencing the Encompass program, the offender suggests he did not reoffend despite being active in the parish in those years.

41. The report opines that the offender does not meet the criteria for a major psychiatric disorder, although he may have met the criteria for heterosexual paedophilia prior to completing treatment.

Medical History

42. The offender was recently hospitalised in intensive care for three weeks. He did not have any major health issues in his younger years. He currently takes medications for rapid heartbeat, urinary retention, reflux and anaemia.

43. The offender has never taken drugs and has not drunk since an episode of pancreatitis.

Opinions

44. The report opines the offender has a low risk of re-offending based on his advanced age, understanding of his behaviour, remorse and lack of contact with children. On the STATIC 99-R test, he would be considered on the low to moderate risk.

Character References

45. Defence relies on the character references of XXXX and the offender’s sister. Both of these references speak of the sense of regret the offender has for his actions. XXXX suggests that the offender has consistently maintained a strong sense of regret and has spoken of the impact his actions must have had on the victims of his crimes. The offender’s sister again speaks of this regret and speaks of the offender acknowledging that he deserves punishments for his past failures.

46. Both letters also speak of the kindness the offender has shown when caring for various family members and his commitment and compassion towards members of the wider community.

47. It was stressed by counsel for the offender that the letters I have just referred to are not relied upon for the purposes of asserting that the offender is a person of good character. Such a submission would face obvious difficulties having regards to the offender’s record of convictions of like offences and that he used his position as a priest (and I infer its assumed character traits) to obtain access to his victims and commit the offending acts (see s 21A(5A) CSPA). Rather, the letters again go to the remorse the offender expresses for his actions and on the steps he has taken in terms of rehabilitation and assisting others.

Medical Records + Affidavit of RH

48. The offender also relies on a NSW Health Discharge Summary and other medical reports, as well as an affidavit written by the offender himself.

49. The offender’s medical history is lengthy and I will not go into it in full detail. However, of note, the offender spent around 3 weeks in intensive care at Westmead Hospital in September 2023 due to sepsis, pancreatitis and emergency removal of his gall bladder. He underwent a six-week rehabilitation period, of which four intensive weeks were at Holroyd Private Hospital. The offender also has irritable bowel syndrome and has to take a variety of medication daily for a number of symptoms.

48. The offender’s affidavit notes that he has significant symptoms resulting from irritable bowel syndrome. He describes these symptoms as exhausting. They require management and are acutely embarrassing for him.

49. It is clear that the offender has significant health issues. His admission to hospital last year was for acute illness resulted in him spending quite a deal of time in ICU. Whilst he seems to have recovered from those illnesses which caused that hospital admission, he is still afflicted by other illnesses. These obviously impact upon his ability to live a normal life. It will be necessary to consider the impact of his physical health and his advanced age on the sentence.

Prospects of rehabilitation and risk of reoffending

52. The offending against the victim of the principal offence occurred 45-47 years ago. There has been no offending since 1992, some 32 years ago.

53. The evidence before me indicates that the offender started taking steps on his path of rehabilitation in 1994 when he sought counselling for sexual matters. He then completed a 6-month residential Encompass programme in 1999.

54. I am satisfied that the offender, having undertaken the self-motivated steps I have referred to, has made a significant part of the journey to rehabilitation. He shows insight into his behaving and the harm it has caused. I consider his prospects of rehabilitation are good.

55. Dr Nielssen opined that the offender was a low risk of re-offending. This is due to his advanced age, having been removed from having access to children and his understanding of his behaviour and its effects. I also observe he has the significant health issues that I have referred to.

56. I consider that the offender has a low risk of reoffending. I accept Dr Nielssen’s opinion that there is a low probability of any further similar offences being committed by the offender.

Victim Impact Statements

57. I have received a victim impact statement from each of CW and MS. Those statements were read to the court on their behalf. Each was a powerful and courageous statement of the trauma the abuse caused the victims. The abuse in this case was perpetrated by a figure of trust in their faith, a matter of significant importance to each of them. They spoke of the confusion and distress the abuse caused them. The statements illustrate with alacrity that sexual abuse of children can have long lasting and devastating impacts on all aspects of the victims’ life.

58. The statements speak of the steps each of CW and MS have taken to try and deal with the abuse and move on with their lives. It is a testament to each of them that they had the statements prepared and read. The Court acknowledges the trauma they have suffered and the courage they have displayed.

Sentencing Principles

59. I must have regard to the purposes of sentencing in s 3A CSPA. In this case, I accept the Crown submissions that of particular relevance from those purposes are ensuring the offender is adequately punished, making him accountable for his actions, denouncing his conduct and deterring others who may consider engaging in similar conduct and recognising the harm done to the victims.

60. I must have regard to the statutory guidepost of the relevant maximum penalty for the offence. As I have observed, that is 6 years imprisonment.

61. I have also observed that I must sentence the offender in accordance with current sentencing practices and recognise (as I have) the trauma that childhood sexual abuse causes to its victims.

62. With respect to the matters on the Form 1, I have had regard to these matters in setting the penalty for the principal offence, noting that this would impact upon the sentence for those counts by way of considerations of specific deterrence for the primary offence and retribution for that offence. These two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. I am not, however, imposing a sentence on the offender for the Form 1 offences: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146, per Spigelman CJ.

63. Each of the matters on the Form 1 in this instance are serious examples of an offence under s 76. Two are offences of digital penetration (sequence 1 & 5) and one of what is now known as sexual touching. I note that sequence 1 has a maximum penalty of 5 years, which maximum penalty increased so that sequences 4 and 5 each have a maximum penalty of 6 years. These offences also involved a gross breach of trust.

64. I will take those matters into account in reaching the sentence that I do for the principal offence noting, however, as I have said, that I am not sentencing the offender for those offences.

65. Having considered the objective seriousness of the offending, the offender’s subjective case, the purposes of sentencing and the other matters relevant to the instinctive synthesis involved in the sentencing exercise, I must decide whether the only appropriate sentence is one of full-time imprisonment (see s 5 CSPA). Relevant matters in reaching a determination of the appropriate sentence, including whether the s 5 threshold has been crossed, is a consideration of the offender’s age and health, the principles of totality and the delay in the prosecution of the offender for these matters. The Crown submits the s 5 threshold has been crossed. The offender’s counsel submits it has not.

66. It is necessary to consider in a little more detail some more matters relevant to the determination of this issue. I will deal with his age and health, totality, delay and then make a determination of the relevant sentence.

The offender’s advanced age

67. As the facts disclose, the offender is now 79 years of age. He suffers from various health conditions which I have summarised. The offender’s counsel submits, and I accept, that these matters are relevant to not only the form of penalty imposed (that is whether the s 5 threshold has been crossed) but also the length of any penalty.

68. I accept that the offender’s age may put him at a disadvantage in custody and make it more onerous on him. I also accept that one of the ways in which custody may be more onerous on the offender by reason of his advanced age is that he will face the prospect of spending all, or a significant part, of the last years of his life in gaol or have little worthwhile life left after his release.

69. Additionally, for the reasons advanced in the offender’s written submissions at [51]-[52] I accept that the offender’s advanced age impacts on the need for specific and general deterrence in the sentencing exercise. As to specific deterrence, the age and health conditions of the offender, the rehabilitative steps he’s already taken and the resultant low risk of further offending mean there is little, if any, application of this purpose. Whilst ordinarily general deterrence is, as I have noted, a prominent purpose of sentencing in child sexual offences, the age of the offender mean that the public may be sufficiently deterred by a relatively light sentence which constitutes a greater punishment than it would for a younger person.

70. The offender’s health conditions have been set out above. I accept that his current medical conditions would be difficult to manage in custody and make prison significantly more onerous on him.

Totality & Proportionality, Delay & Prejudice

71. It is not uncommon for complainants in sexual abuse cases to delay complaining (that is informing others of what happened to them) for some time, often for many years. In the Court’s experience that may be for many reasons- shame, fear or latent memories which return after time. The delay in complaint and perhaps prosecution of an offender may be a matter relevant to the sentencing exercise. However, it is not always a matter that goes to mitigation of the sentence. It may be that fresh charges are laid against a perpetrator when other victims come forward. In such cases, perpetrators are not entitled to a discount because their victims do not always come forward at the same time (see Richards v R [2023] NSWCCA 107 at [4] per Beech-Jones CJ in CL).

72. In some cases, however, delay in prosecution either alone or in combination with other factors may cause prejudice to the offender such that it becomes a significant factor in the sentencing exercise.

73. The offender’s counsel submits that this is such a case. She submits that there is here a fragmentation of sentencing of the offender for offences committed close in time to each other.

74. The fragmentation arises because on 9 December 2016 the offender was sentenced by Sides QC DCJ to 10 years imprisonment, with a non-parole period of 5 years. That sentence commenced on 28 April 2015. The offender was sentenced at that time for 14 offences, 13 being indecent assaults on persons under the age of 16 and one count of sexual intercourse without consent. There were 11 different victims and the offending occurred over a period of approximately 17 years between 1975 and 1992. I have been provided with the remarks on sentence by Sides QC DCJ.

75. Having been released relatively recently from custody, it is submitted the prospect of him returning to custody will make the punishment more telling rather than having remained in custody for those offences and this offence if he was sentenced for them at the same time. Further, it is submitted that the 45-47 year delay in the institution and prosecution of the offending has deprived the offender of the benefit of being sentenced on the basis of principles which were contemporaneous to the commission of the offence and therefore more lenient than those which now apply.

76. Dealing with the latter point first, I do not accept this is a prejudice that significantly impacts on the sentencing discretion in this case. True it is that s 25AA CSPA may have the result that the current sentencing principles for child sexual offences are more severe than they were at the time of the commission of the offence. However, I consider this is balanced by the fact that the offence committed in this case is charged under s 76, being an indecent assault. If the offence was committed today, involving digital penetration of the child’s vagina, it would be sexual intercourse without consent. It would carry a much more significant penalty. Of course, I am not sentencing him for the more serious offence but the offence under s 76 with the maximum penalty I have referred to.

77. As to the former point, namely the prospect of the offender being returned to custody, this brings into consideration the principle of totality and proportionality. This requires that the sentence I set be just and appropriate to the totality of the offending behaviour and not be a disproportionate punishment.

78. I must have regard to the sentence imposed by Sides QC DCJ in determining whether the sentencing outcome, namely the sentence I am to impose and the sentence imposed by Judge Sides QC, as a matter of proportionality could encompass the whole of the criminality of the offending conduct of the offender.

79. This case bears similarities to the matter of R v Obbens [2022] NSWCCA 109. In that case the offender had been sentenced by Williams SC DCJ in this Court for an historical offence of indecent assault against a person under 16 years and under his authority (see [2022] NSWDC 47). There was also a matter on a Form 1. The offender had pleaded guilty and was entitled to a 25% discount on sentence. The offender had been sentenced in this court by Frearson DCJ in separate proceedings comparatively recently for similar offences committed in a similar timeframe to the index offence. For those offences the offender received a 3-year sentence with a non-parole period of 18 months. Williams DCJ, sentenced the offender to a CCO for 18 months. The Crown appealed the sentences as being manifestly inadequate.

80. In the Court of Criminal Appeal, Basten AJA said (at [4]) that it was appropriate to consider the overall criminality and overall punishment of the offending. He agreed with the Hamill and Dhanji JJ that the sentence was not manifestly inadequate. Their Honours said the real question on the appeal was whether the sentencing judge was correct in the circumstances, having considered all possible alternatives, whether the s 5 threshold had been crossed and that no other penalty other than imprisonment was appropriate.

81. Noting that the offender, like this offender, was to be sentenced in accordance with current sentencing practices, their Honours observed (at [10]) that, without being prescriptive, ordinarily such an offence and taking into account the Form 1 matter, would result in a full-time custodial sentence. I respectfully agree that this is the position for this offender.

82. In terms of the issue of totality, at [18] their Honours said that the real question, which might more be categorised as a question of proportionality rather than totality, was whether the total sentencing outcome (the sentence by Frearson DCJ and the sentence of Williams SC DCJ) could encompass that whole criminality of the offending. At [20] their Honours said:

“The determination of the sentence for the single offence in the present case gave rise to an important aspect of the totality principle which applies when there is a delay in the prosecution of multiple offences and a fragmentation of the sentencing proceedings. It can be readily accepted that in cases of sexual offending that remain undisclosed for many years, delay will not automatically operate as a mitigating factor. In such cases the offender will often have enjoyed the benefit of a place in the community to which (usually) he was not entitled: see R v Cattell[2019] NSWCCA 297 and the cases there discussed. The situation is, however, quite different where a person is prosecuted and imprisoned for multiple offences and, some time after serving that sentence additional offending is brought to light. The delay between prosecution and imprisonment and a second prosecution is unlikely to be a period in which the offender went about life free from opprobrium. Further, the bringing of a subsequent prosecution, with the potential for a return to imprisonment, is an additional stress and disruption that would not have been suffered had all offending been dealt with together. The result is that a return to prison to serve a separate term of imprisonment is likely to involve a significantly greater punishment than would be the case had the first term of imprisonment been longer as a result of all the offences having been dealt with together.”

83. In terms of the appropriateness of the CCO imposed by Williams DCJ, their Honours said at [25] that:

“…The real question was whether, having regard to the option of a community corrections order and the whole of the circumstances of the case, the only appropriate sentence was one of imprisonment. It is accepted that a community corrections order constitutes a particularly lenient disposition of a case such as this but, as the judgment of the five-member bench of the Victorian Court of Appeal shows, there are times when such an order is in the best interests of all concerned. Given the punishment already meted out to the respondent by serving the 2016 sentence, his experiences in gaol and his personal circumstances, this was clearly such a case.”

84. In this case, many of the submissions at the sentence hearing addressed whether or not the s 5 threshold had been crossed. That question is viewed in the context of the objective seriousness of the offence, the offender’s subjective case, the purposes of sentencing and the principles of totality and proportionality. Relevant to this is the sentence imposed by Sides QC DCJ that I have referred to.

85. I accept that ordinarily a sentence for an offence such as this, taking into account the matters on the Form 1, would result in a custodial sentence. I must, however, consider the other factors that I have referred to, particularly the delay in the prosecution, any prejudice or hardship that may be caused to the offender, the age and health of the offender, and the impact of those factors on the principles of totality and proportionality.

86. The offender has not re-offended for 32 years. I regard him on the evidence before me as being a very low risk of any further offending. As I have set out, he has taken positive steps of his own volition towards rehabilitation. He has shown genuine remorse and insight into his heinous behaviour and its impact on the victims. He has significant health concerns which would make any time in custody much more onerous. He has spent a considerable time in custody. If he is returned to custody, it is likely this would result in a significantly greater punishment than would be the case if the term of imprisonment imposed by Sides QC DCJ been longer as a result of this offence and the Form 1 matters being dealt with together with the other offences.

87. I re-iterate that I accept and acknowledge the harm that has been caused to the victims. They should each understand that any delay in the prosecution of these matters is not their fault. It is, however, a relevant matter to the sentencing exercise in these particular circumstances in the manner I have sought to explain.

88. In all of the circumstances, I consider that the s 5 threshold has not been crossed. I reach that decision because there is another sentencing option available, namely a CCO. I consider that a CCO for a period of 2 years properly reflects the purposes of sentencing in these circumstances. I do not consider that any additional conditions over and above the usual conditions and a supervision condition are required in this case. I consider that such a sentence considered together with the sentence previously imposed and the term of imprisonment served by the offender, encompasses the whole of the criminality of the offending.

Sentence

89. RH, for the offence to which you have pleaded guilty, you are convicted.

90. Pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I make a community corrections order for a period of 2 years commencing today.

91. The standard conditions of the order apply:

1. The offender must not commit any offence; and

2. Must appear before the court if called on to do so at any time during the term of the order.

92. The following additional condition applies:

1. A supervision condition requiring the offender to submit to supervision of the office of community corrections for so long during the term of the order as that service deems necessary.

93. If the offender fails to comply with the conditions of this order, further action may be taken against him. This may require him to return to court to be re-sentenced.

94. I direct the offender to attend the court registry here a copy of this order will be explained and given to him, and by 4:00pm on Wednesday 21 August 2024, to attend the office of the Community Corrections at Parramatta to commence supervision under this order.

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Decision last updated: 28 August 2024