R v Slattery

Case •

[2017] NSWDC 373

•

18 December 2017

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Slattery [2017] NSWDC 373
Hearing dates: 22 September 2017, 27 October 2017, 30 October 2017 and 15 December 2017; Written submissions (Crown): 22 September 2017, and 17 December 2017; Written submissions (Defence): 18 December 2017
Date of orders: 18 December 2017
Decision date: 18 December 2017
Jurisdiction:Criminal
Before: Hatzistergos DCJ
Decision:

The offender is sentenced to an aggregate term of imprisonment pursuant to s 53A of the 1999 Act of 3 years and 10 months, comprising a non-parole period of 2 years and 4 months to date from 18 December 2017 to 17 April 2020 and an additional term of 1 year and 6 months to date from 18 April 2020 to 17 October 2020, during which the offender is eligible to be released on parole.

Catchwords: CRIMINAL LAW – SENTENCE – offender pleaded guilty to four counts of indecent assault against persons under the age of 16 years – whether the fact that one offence could have been dealt with in the Local Court has a significant bearing on the exercise of sentencing discretion – no prior recorded convictions – remorse established – low likelihood of reoffending – excellent prospects of rehabilitation – special circumstances established – impact of delay in sentencing on the question of general deterrence
Legislation Cited: Crimes Act 1900 (NSW) ss 61E, 61M, 578A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 22, 33, 44, 53A
Cases Cited: AK v R [2016] NSWCCA 238
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Bains v R [2016] NSWCCA 132
Denham v R [2016] NSWCCA 309
Featherstone v R [2008] NSWCCA 71
MC v R [2017] NSWCCA 316
MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
MPB v R [2013] NSWCCA 213
Peiris v R [2014] NSWCCA 58
PWB V R [2011] NSWCCA 84
PWB v R [2011] NSWCCA 84
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Baxter (Court of Criminal Appeal, 26 May 1994, unreported)
R v Borkowski [2009] NSWCCA 182
R v Brian Joseph Spillane [2016] NSWDC 337
R v DCM (Court of Criminal Appeal, 26 October 1993, unreported)
R v Hall [2017] NSWCCA 313
R v Moon [2000] NSWCCA 534
R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152
R v Staupe [2015] NSWCCA 175
R v Thomson and Houlton [2000] NSWLR 383
R v Todd [1982] NSWLR 517
Zreik v R (2012) 223 A Crim R 460
Category:Sentence
Parties: Philip David Slattery
Regina
Representation: Counsel:
Ms Moody (Crown)
Mr Makin (Defence)
File Number(s): 2016/375884, 2016/376028
Publication restriction: Pursuant to section 578A Crimes Act 1900 (NSW) any matter which identifies the complainants or any matter which is likely to identify the complainants are not to be published. They are referred to in these remarks on sentence by the pseudonyms TN and SN.

Remarks on SeNtence

  1. The offender, Philip David Slattery has pleaded guilty to four offences for which he is to be sentenced being:-

H62791027/1

  1. Between 1 June 1989 and 30 June 1989, at Hunter’s Hill in the State of New South Wales, did assault TN and at the time of the assault committed an act of indecency on TN; a person then under the age of 16 years, namely 10 years and under the authority of Philip Slattery contrary of s 61E(1A) Crimes Act 1900 (NSW).

H63328476/1

  1. Between 1 December 1989 and 27 April 1990, at Woy Woy in the State of New South Wales did assault SN and at the time of the assault committed an act of indecency on SN; a person then under the age of 16 years, namely 8 years and under the authority of Philip Slattery contrary of s 61E(1A) Crimes Act 1900 (NSW).

H63328476/3

  1. Between 1 May 1990 and 30 June 1990, at Gregory Hills in the State of New South Wales did assault SN and at the time of the assault committed an act of indecency on SN; a person then under the age of 16 years, namely 9 years and under the authority of Philip Slattery contrary of s 61E(1A) 1900 Act.

H63328476/5

  1. Between 1 January 1992 and 27 April 1992, at Gregory Hills in the State of New South Wales did assault SN and at the time of the assault committed an act of indecency on SN; a person under the authority of Philip Slattery contrary to s 61M(1) of the 1900 Act.

  2. In addition, the offender has requested that I take into account in sentencing him for H63328476/3 a further offence being:-

H63328476/2: Between 1 May 1990 and 30 June 1990, at Gregory Hills in the State of New South Wales did assault SN and at the time of the assault committed an act of indecency on SN; a person then under the age of 16 years, namely 9 years and under the authority of Philip Slattery contrary to s 61E(1A) of the 1900 Act.

  1. Further in relation the sentence of the offender in respect of H63328476/5 above, I have been requested to take into account a further offence being:-

H63328476/4: Between 1 January 1992 and 27 April 1992, at Gregory Hills in the State of New South Wales did assault SN and at the time of the assault committed an act of indecency on SN; a person under the authority of Philip Slattery contrary to s 61M(1) of the 1900 Act.

  1. The offences the subject of the Form 1 are to be taken into account in accordance with s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). [1]

    1. Hereinafter referred to as the “1999 Act”

Agreed Facts

  1. The offender Philip Slattery was born on 10 February 1948. He was the founder of St Mary’s Primary School in Eagle Vale in 1986, where he was employed until the end of 1992. The offender was a Marist Brother who resided at St Gregory’s College in Gregory Hills while working at St Mary’s.

  2. The victims are TN, born 15 March 1979 and SN born 28 April 1981. They are brothers and have a sister who is about 5 years younger than SN.

  3. SN and TN moved to Eagle Vale in the Campbelltown area in about 1984. They both started attending St Mary’s Primary School in 1986 when the school opened where they came to know the offender who was then the principal of the school. The offender participated in family gatherings with the family and other members of the parish.

  4. In 1988, the victim’s parents’ relationship broke down and their father left the family home. Their father no longer had any involvement in the children’s lives and their mother took on sole responsibility for raising SN and TN and their sister.

  5. After departure of the victim’s father, the offender started to become involved in the family, visiting the family home several times a week and providing food and child care. Both the offender and the family were actively involved in the Catholic Church community.

  6. SN and TN would sit with the offender in his school office after school to do their homework. The offender would give them chocolate and soft drinks and tell them not to tell other students. TN expressed an interest to the offender in becoming a Marist Brother and the offender encouraged and helped TN, giving him materials to read about the Catholic Church and the Marist tradition.

  7. The family moved briefly to Alice Springs in 1988 where the offender visited them. The offender suggested that they should return to Eagle Vale and St Mary’s Primary School and in April 1989, the family moved back to Eagle Vale.

  8. After their return, the offender took the victims, SN and TN on various trips on weekends, long weekend and during school holidays to places around Australia; Woy Woy, Broken Hill, Canberra, Blue Mountains, Wollongong and other locations, where they would stay in Marist Brother owned and associated properties. They also went on trips to visit the offender’s family. The offender and the victims, SN and TN would stay in rooms with 2 double beds; sometimes SN and TN would share a double bed and the offender would sleep in the other double. On other occasions, TN would share a bed with the offender. The offender told SN and TN to refer to him as “Uncle Phil” or “Dad” on these trips because it was easier then referring to him as “Brother Philip.”

  9. The offender would also take SN and TN to see movies in Sydney. They would often stay with a friend of the offender who was a Marist Brother.

Offending against TN

  1. In June 1989, the offender took SN and TN to see the movie, Indiana Jones and the Last Crusade at a cinema in the city. They later went to the offender’s friend’s residence in Hunters Hill to stay the night.

  2. TN who was 10 years old at the time had a bath at the residence. The offender entered the bathroom while TN was naked and approached the victim. The offender handed TN a towel and then started to rub TN’s naked body with the towel. TN pushed the offender away and said to him, “I can do that myself.” The offender stopped drying TN. Afterwards the offender asked TN if he had dried himself properly including behind his ears and around his groin. This constituted H62791027/1.

  3. TN told police he could not recall any occasion where the offender touched his genitals.

  4. On an occasion in 1990, the offender had a discussion with TN in his study. He told the victim TN that he was going to tell him about the “birds and the bees” and went on to talk to him about sex, masturbation and wet dreams, telling TN that masturbation and sex outside marriage were sins. He reminded TN that the Marist tradition involved a vow of celibacy. The offender told TN that the reason that he was telling him about this was because TN’s mother would not know these things. The victim TN felt embarrassed and did not know how to respond.

  5. On another occasion, in 1990, the offender took TN and SN to Bathurst to visit Mount Panorama racing track. The offender encouraged TN to sit on the offender’s lap and steer the vehicle around the race track. The offender made a comment about how big TN was and how it was a tight squeeze to fit him between his lap and the steering wheel.

  6. The offender continued to look after TN and SN after school. In 1990, the after-school visits started to take place at the offender’s private residence at St Gregory’s College. This would happen several times per week. The victim TN would watch videos in the offender’s bedroom. At times he would be alone with the offender and recall sitting on the bed or on a chair. From 1991 until February 1993, the victim TN was attending St Gregory’s College. He continued to visit the offender’s private residence after school and the offender would give him chocolates and soft drinks.

  7. The offender continued to take TN and SN on trips away. In 1991, the offender took TN alone on a trip to Cairns and Innisfail. The victim TN shared a bed with the offender.

Offending against SN

  1. On an occasion during late 1989 and 1990, when the victim SN was 8 years old, the offender took him on a trip to Woy Woy alone. They stayed in a house connected to the Marist Brothers. There were no other occupants in the house.

  2. The victim SN and the offender went to the beach. When they returned from the beach, the offender insisted that SN have a shower. When SN was in the shower, the offender opened the shower curtain to check on him. The offender stood and watched him shower. When the victim came out of the shower, the offender dried him with a towel paying particular attention to his genitals and buttocks. The offender then applied talcum powder to SN’s genitals and buttocks with his hands. This constituted H63328476/1.

  3. Between 1990 and 1992, the offender would take SN alone to the offender's residence at St Gregory's after school. The offender volunteered to supervise SN when TN was elsewhere and their mother was working.

  4. SN recalls first visiting the offender's residence on his own in 1990 when he was in Grade 4. The residence was made up of a study, a bedroom and an ensuite, connected to the bedroom. The bedroom had a single bed, a single recliner and a TV/video unit. The ensuite was small with a shower cubicle, toilet and basin. There was a sliding door between the bedroom and ensuite.

  5. On an occasion in May or June 1990 SN who was 9 years old at the time attended the offender's residence. As soon as SN arrived, the offender told him to have a shower. SN got in the shower. The sliding door between the ensuite and bedroom was open and the offender was sitting on the recliner chair watching the victim SN shower with a towel over his lap.

  6. When SN finished his shower, he stepped out of the shower. The offender dried SN, who was naked, focusing his attention on the victim SN’s genitals and buttocks, telling SN he needed to make sure those areas were dry. The offender then applied talcum powder with his hands to SN’s naked genitals and buttocks. This was the matter on the Form 1 being H63328476/2.

  7. SN dressed himself in shorts and a t-shirt. The offender put a film on the television. He told the victim to sit on his lap. The offender put his arms around SN with one arm resting on SN’s upper leg. The offender placed his other hand down the back of SN’s shorts underneath his underpants with the offender's fingers between SN’s buttocks. The offender left his fingers remaining between SN’s buttocks for the duration of the film. This was H63328476/3.

  8. This was the first time the offender did this to the victim. After the movie finished the offender took the victim, SN to have a meal with the other Marist Brothers in the same building as his residence. The victim then went home.

  9. The offender continued to have SN over to his residence alone at St Gregory's between 1990 and 1992. This would happen on occasions around every few weeks to a month apart. Each time SN went to the offender's residence, the offender would ask SN to shower, then dry and apply talcum powder to his naked genitals and buttocks and have the victim SN sit on his lap, placing his fingers between the victim's buttocks underneath his underpants where they would remain for the duration of a film. They always watched action or war films. SN would then have a meal with the offender. The offender made it clear to SN that he was not to talk about what occurred at the offender's residence with anyone else.

  10. The last time SN attended the offender's residence on his own was in early 1992 when SN’s mother started a new relationship with a man. SN was 10 years old at the time.

  11. SN recalled that on this last occasion the offender did the same things he had done on each other occasion. The victim SN had a shower when he arrived with the sliding door between the ensuite and bedroom open. The offender sat on the recliner chair watching SN shower with a towel over his lap.

  12. SN finished his shower and the offender dried SN’s naked body focusing his attention on SN’s genitals and buttocks. The offender then applied talcum powder with his hands to SNs naked genitals and buttocks. This was H63328476/4 to be taken into account on the Form 1 in relation to H63328476/5.

  13. SN got dressed and the offender put a film on the television as usual. SN sat on the offender's lap and the offender put his arms around him. He placed one hand down the back of SN’s shorts underneath his underpants. The offender placed his fingers between SN’s buttocks. The offender's fingers remained there for the duration of the film. This was H63328476/5.

  14. After this occasion because the victim's mother was in a new relationship the offender became less involved with the family. SN did not attend the offender's residence at St Gregory’s alone again.

  15. In February 1993, the family moved to the United Kingdom for 3 years. The offender visited the family on two occasions. 1n 1994, the offender paid for a trip for TN to visit him in Chicago. The family returned to Australia in about 1995 residing in Brisbane. The offender visited the family on two further occasions in 1997 and March 2000 for TN’s 21st birthday. This was the last time the offender visited the family.

  16. SN first disclosed the offending to his step-father, a registered psychologist, around early 2015. He then disclosed the offending to other family members including his brother, TN.

  17. After the matters were reported to police, the offender was arrested and cautioned on 15 December 2016. He participated in an electronically recorded interview with police where he denied the allegation put to him.

Victim Impact Statement

  1. The Court has been provided with a victim impact statement signed on behalf of the victims but delivered orally to the Court by the victims’ step father and the victims’ sister.

  2. The statement recounts the impact that the offending has had on them and their capacity to interact and form relationships and the separation it brought between them and members of their family. It refers to the impact psychologically, emotionally and spiritually the abuse has caused.

  3. SN recounts that the abuse he suffered resulted in him fighting a battle between the fear of loneliness and the terror of intimacy. He refers to the fact that his child brain would crave attention but then be confused, scared and paralysed. It describes how he was convinced to stay silent and how the offender created an increasingly lonely world around him where he had nowhere to turn, no ally, no safe space and then he was abused.

  4. That statement is a powerful reminder to this Court of the impact that the offender’s actions had upon young vulnerable children, which the Court takes into account in the way the law provides. [2]

    2. Division 2 Part 3 of the 1999 Act

  5. No submission was advanced by the Crown that the harm occasioned by the victims was other than what could reasonably be expected to arise from the offences for which the offender is to be sentenced.

Objective Seriousness

  1. The Crown submitted that the objective seriousness of all the offences can be assessed with reference to how the offences took place, the period of time over which they occurred and the immediate effect on the victim, amongst other factors. Reference in this regard was made to R v AJP,[3] MLP v R [4] and R v PGM.[5] In oral submissions reference was also made to Denham v R. [6]

    3. [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [25]

    4. [2006] NSWCCA 271; (2006) 164 A Crim R 93 at [22]

    5. [2008] NSWCCA 172; (2008) 187 A Crim R 152 at [32]-[37]

    6. [2016] NSWCCA 309 at [96]

  2. Relevantly the Crown submitted:-

H62791027/1 (TN)

  1. The victim's age - ten years old, significantly below the age of 16 years.

  2. The significant age difference between the victim and the offender - the offender was 40 years old at the time of this offence and as noted, the victim was ten years old.

  3. The offender approached the victim whilst he was in a vulnerable position, naked in the bathroom at the offender's friend's house at night time.

  4. The nature of the indecent assault was serious - rubbing the victim's naked body with a towel.

  5. The offender had isolated the victim from his mother he had taken the victim and his brother on a night away, meaning the victim had no parental figure to turn to after the assault.

  6. The immediate effect on the victim, who pushed the offender away.

  7. The relationship between the victim and the offender and the position of authority the offender was in at the time of the offence. The offender was the principal of the school where the victim attended and at the time of the offence was looking after the victim on a night away from his mother.

  8. The offence is aggravated as it involved a significant breach of trust. The facts outline 'grooming ' behaviour by the offender to the victim prior to the commission of this offence. In particular it asserts the agreed facts make clear the offender was ingratiating himself in the Family in period of time before the offending commenced, knowing the family was vulnerable after the father had left the family home and ceased to have any involvement with the children The offender also had the victim refer to him as "Uncle Phil" or "Dad" when they would go on trips together reflective of how the offender ingratiated himself with the victim and the significant breach of trust experienced as a result of the offence.

  9. The offence was part of a pattern of sexual misconduct, as evidenced by the behaviour towards the victim, as set out in the agreed facts on sentence.

H63328476/1 (SN)

  1. The victim's age - eight years o]d, significant]y below the age of 16 years.

  2. The significant age difference between the victim and the offender - the offender was 40 or 41 years old at the time of this offence and as noted, the victim was eight years old.

  3. The offender approached the victim whilst he was in a vulnerable position, naked in the shower, in a house alone with the offender.

  4. The offence was planned to an extent, with the offender insisting that the victim take a shower.

  5. The nature of the indecent assault was particularly serious - the offender rubbed the victim's naked body with a towel, paying particular attention to his genitals and buttocks, before applying talcum power to the victim's genitals and buttocks with his hand. The offence involved skin to skin contact with an eight year old boy's genitals and buttocks.

  6. The offender had isolated the victim from his mother - he had taken the victim on a night away, meaning the victim had no parental figure to turn to after the assault.

  7. The relationship between the victim and the offender and the position of authority the offender was in at the time of the offence. The offender was the principal of the school where the victim attended.

  8. The offence is aggravated as it involved a significant breach of trust. The facts outline 'grooming ' behaviour by the offender to the victim prior to the commission of this offence. As noted in relation to TN above, it asserts the offender was ingratiating himself in the Family in period of time before the offending commenced, knowing the family was vulnerable after the father had left the family home and ceased to have any involvement with the children. The offender also had the victim refer to him as "Uncle Phil" or "Dad" when they would go on trips together reflective of how the offender ingratiated himself with the victim and the significant breach of trust experienced as a result of the offence.

  9. The offence was part of a pattern of persistent and frequent sexual misconduct and offending against this victim.

H63328476/3 (SN) [7]

7. 1   Form 1 matter (sequence 2) also to be taken into account in relation to this offence

  1. The victim's age nine years old, significantly below the age of 16 years.

  2. The significant age difference between the victim and the offender the offender was 41 years old at the time of this offence and as noted, the victim was nine years old.

  3. The offence followed a predatory course of behaviour by the offender, where he volunteered to supervise the victim when his brother was elsewhere and his mother was working.

  4. The offender approached the victim whilst he was in a vulnerable position, naked in the shower, in the offender's house.

  5. The offence was planned to an extent, with the offender insisting that the victim take a shower.

  6. The nature of the indecent assault was very serious - the offender placed his fingers between the victim's buttocks, leaving them there for the duration of a film. The offender had the victim sitting on his lap whilst this was occurring.

  7. The assault was lengthy.

  8. The victim was staying the night at the offender's house without his mother, meaning he had no parental figure to turn to after the assault.

  9. The relationship between the victim and the offender and the position of authority the offender was in at the time of the offence. The offender was the principal of the school where the victim attended.

  10. The offence is aggravated as it involved a significant breach of trust. The facts outline 'grooming ' behaviour by the offender to the victim prior to the commission of this offence. As noted in relation to TN above, the offender was ingratiating himself in the family in period of time before the offending commenced, knowing the family was vulnerable after the father had left the family home and ceased to have any involvement with the children The offender also had the victim refer to him as "Uncle Phil" or "Dad" when they would go on trips together, reflective of how the offender ingratiated himself with the victim and the significant breach of trust experienced as a result of the offence.

  11. The offender made it clear to the victim he was not to discuss the conduct at his residence with anyone else, effectively silencing the victim.

  12. The offence was part of a pattern of persistent and frequent sexual misconduct and offending against this victim.

H63328476/5 (SN) [8]

  1. The victim's age - ten years old.

  2. The offence is aggravated under s 61M(1) because the victim was under the authority of the offender, however the Crown also relies on the additional circumstance of aggravation available, that the victim was under 16 years of age.

  3. The significant age difference between the victim and the offender - the offender was 42 or 43 years old at the time of this offence and as noted, the victim was ten years old.

    8. 1   Form 1 matter (sequence 4) also to be taken into account in relation to this offence

  1. The Crown also relies on the factors (c) - (l) as set out above in relation to H63328476/3.

  2. The Crown submitted that the offences which the offender stands to be sentenced relate to ongoing sexual abuse of two young brothers and draws attention to the fact that the offences occurred over a lengthy period of time. The offences against TN being committed in June 1989, the offences against SN being committed in 1989/90 through to 1992. It was argued that the offences spanned at least three years, particularly in relation to SN, noting that the offences were persistent and frequent in nature, occurring “around every few weeks to a month.” The Crown also noted that the offender groomed the victims who had been entrusted into his care for his own sexual exploitation and exploited his position of trust, not just as principal and a respected Marist Brother at his school, but also took advantage of their family situation, knowing that their father had left the family.

  3. The Crown submitted that each of the first sequences fell within the mid-range of offending whilst H63328476/3 and /5 involving SN fell above the mid-range. It contended that H63328476/3 was more serious than H63328476/5 because the victim was younger but bearing in mind the penalties that pertained this may in the end result in no difference.

Offender’s Submissions

  1. In the presentence report prepared by Community Corrections Officer Stuart Gale dated 15 September 2017, [9] the offender was recorded as agreeing with the facts despite limited recollection due to the lapse of time.

    9. Exhibit B

  2. Tendered in the offender’s case was a psychiatric report of Dr Christopher Cocks, dated 16 June 2017. [10]

    10. Exhibit 1

  3. Dr Cocks obtains a history consistent with “NSW police facts sheets” but adding that the offender’s memory was limited.

  4. The offender’s submissions by in large did not contest the analysis by the Crown although it submitted that the offending in this instance involved isolated lapses. Particularly it drew attention to the fact that there was only one offence in relation to TN and that the offences in relation to SN were perpetuated between late 1989 and early 1992, with no subsequent offending to date.

  5. The Defence conceded that notwithstanding the fact that the offender was in a position of authority the offences were aggravated by being an abuse of a position of trust for the purposes of s 21A(k) of the 1999 Act.

Assessment

  1. Each of the offences followed a period where the offender had become closely associated with the family of the victims and had engaged in some grooming behaviour including providing chocolates and soft drinks, homework supervision trips away including movies sleeping together and referring to him as “Uncle Phil or “Dad” .I accept that the offences involved a significant breach of trust on the offender’s behalf; an aggravating factor pursuant to s 21A(2)(i) of the 1999 Act.

  2. The offences occurred during the period 1989 to 1992. In relation to the offending the subject of H63328476/3 and 5 these represent the first and last of a series of acts of a similar nature.

  3. The approach to be taken in circumstances of such offending was summarised by Johnson J in AK v R:-[11]

    11. [2016] NSWCCA 238 at [66]-[77] (with whom Beazley P and Harrison J agreed).

[66] Although the terms “representative counts” or “representative charges” were not used at the sentencing hearing, it was clear that the Applicant's offences were to be considered against a background of “inappropriate sexual touching” of a girl aged between eight and 10 or 11 years. The principles arising from sentencing in representative count cases have some application to a case such as this.

[67] Since the decision of this Court in R v JCW, the accepted approach when courts are imposing a sentence in respect of representative counts, in relation to which pleas of guilty have been entered, is as follows:

“(a) that the overall history of the conduct from which the representative charges have been selected may be looked at for the purpose of understanding the relationship between the parties;

(b) to exclude any suggestion that the offences charged were of an isolated nature; and

(c) as bearing upon the degree of any leniency the court might be considering in regard to sentencing.”

[68] It has been accepted that the history should not be used as the basis for sentencing the convicted person for charges other than those in the indictment, or as a matter of aggravation of those charges: R v JCW at 478 [68].

[69] In Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308; 198 A Crim R 395, Basten JA considered (at 408 [67]) that the undisputed fact that the offender committed numerous additional offences (similar to those charged), was relevant to his state of mind in committing the offences charged, his motive, his sense (or absence of sense) of wrongdoing at the time, his willingness to control inappropriate urges for sexual gratification, the effects on the complainant of his conduct and by way of explanation of the fact that the conduct went undetected for a significant period. Following a Victorian line of authority, his Honour considered that the fact that the offences constituted part of an ongoing course of conduct placed them in a higher range of offending (at 408 [68]).

[70] RS Hulme J applied the principles in R v JCW, confining the use of the uncharged criminal acts in the manner described in that decision (see [67] above).

[71] As the third member of the Court, I found the reasoning of Basten JA persuasive, but did not consider the Court should depart from the principles in R v JCW in circumstances where no party had invited reconsideration of those principles (at 415 [102]-[104]).

[72] Since the decision in Giles v Director of Public Prosecutions (NSW), this Court has not been invited to reconsider the principles in R v JCW. Accordingly, with the agreement of Harrison and Garling JJ, I said in R v Gommerson at 547 [68]-[69]:

“68 The offences committed against JH were representative counts. It was not argued for the Crown that the approach adopted by Basten JA (to which I gave guarded support) in Giles v Director of Public Prosecutions [2009] NSWCCA 308; 198 A Crim R 395 ought be taken in this case in approaching sentencing for representative counts.

69 The law to be applied, in those circumstances, remains that stated in R v JCW [2000] NSWCCA 209; 112 A Crim R 466. Applying that principle, the Court should bear in mind that the present offences were not isolated offences against JH: R v JCW at 478 [67]-[68].”

[73] I approach the resolution of the first ground of appeal with the principles from R v JCW in mind.

[74] It was open to the sentencing Judge to have regard to the Applicant's earlier conduct involving inappropriate sexual touching on sentence. It is regrettable that his Honour did not use the accepted principles, as set out in the Crown's submissions in the District Court, that the offences were not “isolated incidents or an aberration”.

[75] That said, it was not erroneous for his Honour to describe the Applicant's conduct in these offences against Helen in Counts 2 and 3 (and the Form 1 offence attached to Count 3) as being part of a continuing course of action. It may be that the description of conduct as being part of a “course of conduct” may not be apt in a particular case, if the uncharged conduct is said to constitute a small number of incidents. However, the manner in which the uncharged conduct was described in the agreed statement of facts meant that the description was apt in the Applicant's case.

[76] The difficulty which arose, however, was the conclusion that the Applicant “mentored or proceeded to conduct himself in a way that add to this offending”. This statement was made in the part of the remarks where an assessment was being made of the objective seriousness of the offences (see [52] above). It is difficult to avoid a conclusion that in saying that these matters “add to this offending”, his Honour was doing anything other than elevating the objective seriousness of the offences by way of aggravation. Such an approach is not available in accordance with sentencing law as it applies in this State.

  1. The offender’s actions cannot in this context be regarded as isolated lapses as the Defence contends.

  2. In relation to H62791027/1 against TN, I accept that it occurred at a time the victim was aged 10 and at a time the offender was staying with a friend at Hunter’s Hill for the night. The offence occurred at a time and place where the victim’s parent was not present. I accept that the victim was in a vulnerable position being naked in the shower. It was not submitted that either by this factor or age, vulnerability for the purposes s 21A(2)(l) of the 1999 Act was engaged. Nevertheless these matters are of relevance to objective gravity. [12]

    12. PWB V R [2011] NSWCCA 84 at [12]

  3. I accept that the contact was brief as it was resisted by the victim and did not involve the genitals or skin on skin contact. Whilst this one offence did not constitute part of a pattern of offending against this victim it occurred in the context of other conduct by the offender towards this victim and his brother as described in the agreed facts.

  4. Overall I would regard this offence as falling within the lower range of objective seriousness.

  5. H63328476/1 represents the first offence involving SN and occurred when the offender was on a trip with the victim in Woy Woy alone. The victim was 8 years of age being significantly below the age of 16 years. I accept that the offender was in a vulnerable position by being naked in the shower and alone with the offender at the time. The offender’s insistence on the victim having a shower when combined with offender’s action during and after the shower satisfy me that some planning was involved although no submission was made that the offending falls within the terms of s 21A(2)(n) of the 1999 Act.

  6. This offence did involve towel on skin and skin on skin contact including the genitals and buttocks. The fact that it was not resisted satisfies me that it was of a longer duration than the offence against TN.

  7. I would assess this offence as being in the lower range of objective seriousness although more serious than H62791027/1.

  8. The offence represented the commencement of a pattern of behaviour involving this victim but followed a similar circumstance directed to this victim’s brother.

  9. H63328476/3 involved the offender requesting the victim him sit on his lap in May or June of 1990 placing his fingers between the victim’s buttocks, underneath his underpants and would remain there for the duration of the film. It is not clear what number of fingers were so placed. One of the offender’s arms was on the victim’s upper leg at the time. This offence involved skin on skin contact. The duration was sustained as it occurred during the watching of an action or war film. The victim was aged 9 at the time. The circumstances in which he came to the residence were again that the offender would take the victim to his residence after school in circumstances where he volunteered to supervise him when his brother TN was elsewhere and their mother was working. Following this offence the victim returned home.

  10. This offence occurred after the victim showered and dressed had himself and at a time where the victim was isolated from his mother and brother. It was not submitted either by age or isolation vulnerability for the purposes s 21A(2)(l) of the 1999 Act was engaged. Nevertheless it is of relevance to the objective gravity of the offending. [13]

    13. PWB V R [2011] NSWCCA 84 at [12]

  11. I accept that this was part of a pattern of persistent and frequent sexual misconduct involving this victim. Whilst I am satisfied that some planning was involved no submission was made that the offending falls within the terms of s 21A(2)(n) of the 1999 Act.

  12. The agreed facts acknowledged that the offender continued to have the victim over to his residence alone every few weeks to a month apart and would ask him to shower, dry and apply talcum powder to his naked genital and buttocks underneath his underpants and then have him sit on his lap whereupon he would place his fingers between the victim’s buttocks for the duration of the film they were watching. The victim was told not to talk about what had occurred to anyone.

  13. H63328476/5 involved the last occasion the victim sat on the offender’s lap and placed his fingers between his buttocks being in early 2012 when the victim was aged 10. It is not clear what number of fingers were so placed. The duration was not momentary as it was consumed by the watching of an action or war film.

  14. This offence also involved skin on skin contact. The victim was isolated from his mother and brother. However it was not submitted either by age or isolation vulnerability as an aggravating factor was established for the purposes s 21A(2)(l) of the 1999 Act. Nevertheless these matters are of relevance to objective gravity.

  15. I accept that this was part of a pattern of persistent and frequent sexual misconduct involving this victim. Whilst I am satisfied that some planning was involved no submission was made that the offending falls within the terms of s 21A(2)(n) of the 1999 Act.

  16. This offence was brought under s 61M(1) of the 1900 Act on the basis that the victim was under authority of the offender. Nevertheless I accept that by reason of s 61M(3)(b) as it stood at the time the offence is also aggravated by reason of the victim being under the age of 16 years at the time.

  17. The offending ceased just after the victim’s mother started a new relationship.

  18. In respect of the offences against SN I am of the view that counts H63328476/3 and 5 fall within the middle range of objective seriousness.

  19. Although the offender is only to be sentenced in relation to the charged acts they are to be viewed in the context in which they occurred and taking into account the Form 1 matters as earlier specified.

MITIGATING FACTORS

Personal Factors

  1. The pre-sentence report by Mr Gale discloses that the offender is single 69 year old male with no dependants who resides in his own accommodation in the Parramatta area. The offender has been raised in a strict religious home of seven children. He was reported to assist his mother with caring for his siblings across all aspects of family life while his father worked 2 jobs to support the family. This included assisting with the preparation of meals, bathing his siblings, and numerous other chores until the age of 14, when he left the family home to enter the Marist Brother Order and religious life. At that stage he relocated to the Mittagong area to complete his School Leaving Certificate. He then undertook study in religious teachings with the intention of becoming a religious teaching brother.

  2. The offender then completed teacher training and reported an extensive career in the Catholic Education System as a teacher before ascending to the position of school principal in a career spanning 30 years. He then worked as a school inspector in the Catholic Education Office for 11 year before being retrenched and undertaking further studies in Adult Education.

  1. His current employment is that of a Funeral Celebrant in Sydney, conducting up to 6 services per week.

  2. Dr Cocks refers to the offender’s primary supports being his two sisters and two longstanding close friends.

  3. Dr Cocks records a history that the offender came into contact with the victims, in his role as the Principal of St Mary’s Primary School and stated that alongside this role he was responsible for pastoral care.

  4. Under the heading of sexual history, Dr Cocks records that the offender was taught from a young age to shield his sexual desires and discusses also that the offender denied his sexuality of most of his adolescent years and early adulthood. It was not until he was 47 that he realised that he had predominantly homosexual drives.

Jurisdiction of the Local Court

  1. The offender submitted that the Local Court would have had jurisdiction with respect of the offences. It was argued that although this Court is not bound by the jurisdictional limitation imposed on the Local Court,[14] the fact that the matter could have been dealt with in the Local Court could be a relevant consideration in the exercise of discretion reserved to a sentencing judge.

    14. 1999 Act s 5

  2. The Crown submitted that s 61E(1A) charges were not table offences at them time as the victim was not above 14 years of age. It acknowledged that H63326476/5 was a table offence, however the Crown elected to have the matter dealt with in the District Court, such that this matter would have no relevance.

  3. In Bains v R, [15] Basten JA stated that:-

[12] It is doubtful whether there is “a rule of law”; if there is, it should be applied, not “taken into account”. However, what was meant was that there is a factor to be taken into account with varying significance in different contexts. Again, the particular nature of the significance is not articulated, except to suggest that it concerns the subjective circumstances of the offender.

[13] To approach the matter on the basis of a presumptive fetter on the exercise of the court's sentencing discretion implies a power to review the exercise of prosecutorial discretion in the selection of jurisdiction. As noted in the joint reasons in Magaming v The Queen,“[i]t is well established that it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences.” To which one might add, and in what court. The court should impose the appropriate sentence for the offence as proved, within the limits of the sentencing court's jurisdiction and discretion.

15. [2016] NSWCCA 132 at [12]-[13]

  1. In this case, it cannot be said that the circumstances in relation to the one matter which could have been dealt with summarily amount to “rare and exceptional” such that it is clear that offence ought to have been prosecuted in the Local Court. [16] Indeed no argument to this end was presented.

    16. Zreik v R (2012) 223 A Crim R 460 at [83]

  2. In my view the fact that one offence may have been within the jurisdiction of the Local Court is of no significance to the exercise of this Court’s sentencing discretion when the circumstances are looked at overall.

Previous Convictions

  1. It is acknowledged that the offender does not have a record of previous convictions; a matter I take into account by way of mitigation. [17]

    17. s 21A(2)(e) of the 1999 Act

Previous Good Character

  1. The Crown submitted that the offender’s previous good character can be taken into account in relation to the offence against TN, but not in relation to the offences against SN. In light of the provision of s 21A(5A) of the 1999 Act no submission to the contrary was made on behalf of the offender. [18]

    18. R v Staupe [2015] NSWCCA 175 at [83]-[87]

Remorse

  1. Community corrections officer Stuart Gales records in his report that on 15 September 2017, that the offender agreed to the facts despite his limited recollection of the offences due to the lapse of time since the offences were committed. He noted that during the interviews, the offender verbalised concerns for the victims and acknowledged the impact of his offending on them. The offender denied his actions were intentional, and that the offending “just happened” and stated that he “was totally responsible” for his actions.

  2. In the offender’s case, letters were submitted to the Court and also directed to the two victims. In those letters, the offender takes responsibility for what occurred and the effects that his actions had on his victims. He has expressed remorse and apologised for his actions. Those expressions were reiterated in testimonials submitted to the Court by his sibling Sister Mary Louise Slattery and former professional colleagues Mr Christopher Dutfield and Mr Ross McGinnity. [19]

    19. Exhibit 4

  3. In the circumstances the offender submitted that he was remorseful as he has accepted responsibility for his actions and acknowledged the impact, injury, loss and damage caused by his actions. I accept that remorse has been established in this regard. [20]

    20. 21A(2)(r) of the 1999 Act

Likelihood Reoffending/Rehabilitation

  1. Mr Gale in his pre-sentence report records that according to the Level of Service Inventory – Revised Actuarial Risk/Needs Assessment, the offender was assessed to be at low risk of re-offending. It is identified that the criminogenic needs were emotional/personal.

  2. In conclusion, the report found the offender as presenting a low risk of re-offending noting that he demonstrated relevant insight into his offending behaviour given the passage of time since the offences occurred and demonstrated concern for the victims regarding the impact his behaviour may have had on them. It was noted that the offender has the benefit of family support, stable accommodation, ongoing employment and pro-social influences in the community.

  3. In cross-examination, Mr Gale indicated that he had visited the offender 3 times, twice in his office and once at his home in Parramatta. Specifically his attention was drawn to an admission which the offender had made in relation to a previous allegation in 1970, that he had done something that was indiscreet. Mr Gale indicated that that admission would not have been factored into his assessment. As the matter did not involve criminal proceedings and the offender had not pleaded guilty. Mr Gale indicated that he maintains his assessment of the offender being of low-risk.

  4. In assessing the likelihood of reoffending I bear in mind the contents of three testimonials (as referred to earlier) submitted on his behalf evidencing the offender’s background. The offender is now accepting of his sexuality has re-established himself in a career outside of education as a celebrant,

  5. The Crown accepts that there is low likelihood of re-offending.

  6. However the Crown draws attention to contents of the offender’s letter of apology, particularly in relation to the apology to TN arguing that it reflected attempts to minimise his behaviour. Dr Cocks’ report refers to the circumstances of the victims’ household following the breakdown of their parents’ marriage, the emotional instability of their mother being affected by depressive illness and struggling to meet the needs of the children. A history was obtained that both the victims were going through some difficulties as a result of their parent’s relationship breakdown and that the offender felt compelled to provide for the family, through some support. He stated that his intention was to provide some assistance for the boys whilst the mother was going through a difficult time and that his involvement with the boys ceased after the mother had established a new relationship that provided some stability within the home.

  7. This explanation was reiterated in the offender’s letter to the Court. [21] In offender’s letter to TN the offender expresses sorrow that his support and other efforts were perceived in hindsight by the victim as not charitable and supportive. [22]

    21. Exhibit 2

    22. Exhibit 3

  8. Insofar as the offender’s prospects of rehabilitation is concerned the Defence whilst acknowledging the Crown’s arguments drew attention to the fact that the offences occurred some 25 years prior to the offender’s arrest and notes that this could be used as to evidence the offender’s progress towards rehabilitation. [23] In the respect in which the Defence advances its argument the recent decision in R v Hall [24] affirms that the Court can take into account the offender’s subsequent progress by way of rehabilitation.

    23. R v Todd [1982] NSWLR 517, 519

    24. [2017] NSWCCA 313 at [119]

  9. In Dr Cock’s report he notes that the offender has insight into the difficulties of his past and is open to working through his psychological issues with an appropriate therapist in more detail.

  10. Accepting the willingness of the offender as discussed by Dr Cocks, the time that has elapsed and the Crown’s concession that there is no likelihood of reoffending, I am satisfied that the offender has excellent prospects of rehabilitation.

Plea of Guilty

  1. The offender pleaded guilty at the earliest opportunity and it is acknowledged that that he is entitled to a 25% discount. [25]

    25. s 22 of the 1999 Act; R v Thomson and Houlton [2000] NSWLR 383; R v Borkowski [2009] NSWCCA 182 at [32]

Age and Health

  1. The offender is aged 69 years.

  2. Dr Cock’s report obtains a history of the offender suffering from high cholesterol and being diagnosed with obstructive sleep apnoea, requiring a CPAP machine for sleep. Five years ago the offender was diagnosed with benign prostatic hypertrophy and underwent transurethral resection of the prostate. In the last 12 month he has also had abdominal surgery to repair 2 hernias. Furthermore, he suffers from glaucoma. No other medical issues were identified.

  3. Dr Cocks notes that Mr Slattery has reported a significant deterioration in his mental health since being charged with the offences before the Court. Particularly he is becoming increasingly anxious and depressed over the last 6 months and such anxiety causes him to experience light headedness. The offender stated that his sleep patterns are impaired and that he suffers from intermittent insomnia and wakes ruminating about the charges before the Court. He notes that has experienced anorexia with a loss of a total of 10 kilograms in weight over the last 6 months.

  4. The offender was noted to have experienced non-specific suicidal ideation. When first charged with the offences before the Court in December of 2016, he had thoughts of ending his life. At the time, he believed that he could get through the stress – obviously he could not get through the stress of his legal matters. At the assessment, the offender denied specific plans of intent to harm himself and stated that his work as a Funeral Celebrant kept him going.

  5. The offender engaged the support of a counsellor to address his depressive symptomatology and has been prescribed anti-depressant medication.

  6. Prior to being charged with the offences, he has not had any history of mental health related problems, nor has he previously required treatment and the care of a doctor or a psychologist for mental health related issues.

  7. Dr Cocks states that the offender fulfils the criteria for a depressive disorder (moderate severity). Noting that the offender presents biological and psychological symptoms of a depressive illness. He reports a pervasively depressed mood, experiences hopelessness and worthlessness with regards to his situation and has experienced marked anhedonia with loss of interests once enjoyed. He notes that the offender’s biological rhythms are disturbed resulting in a loss of 10 kilograms in weight since December 2016 and that his sleeping pattern has been impaired with intermittent insomnia. He notes that has access to psychological treatment to address his depressive symptoms which emerged during the context of the charges he is facing. Dr Cocks notes that the offender from an early age repressed his sexual drive. He was taught that sexual desire was sin and the act of masturbation was a mortal sin. Dr Cocks notes that given his strict upbringing and vows of chastity and obedience, the offender was never able to form a healthy sexual identity and the inevitable biological drives that he experienced caused confusion and conflict as they threatened his core identity as a devote Catholic. Dr Cocks notes that his problems with intimate relationships were reflective of his own struggles in coming to terms with his sexual identity.

  8. Overall, Dr Cocks finds that the offender has a good prognosis, has insight into the difficulties of his past and is open to working through the psychological issues with appropriate therapists in more detail.

  9. No submission was made that the offender’s age and condition was such that he cannot be treated in custody.

SENTENCE

  1. In considering the purposes of sentencing in s 3A of the 1999 Act the offender needs to be adequately punished, made accountable and his conduct denounced. The sentence needs to also recognise the harm to the victims. I accept the community does not need to be protected from the offender and he has been specifically deterred. I accept he has excellent prospects of rehabilitation.

  2. In considering the question of general deterrence I bear in mind the comments of Hamill J In MC v R:-[26]

[57]... There are some circumstances in which it has been held that a particular kind of offender may be an “inappropriate vehicle” for sentences containing a large component of general deterrence. That includes children and young offenders and offenders who suffer from an intellectual disability or mental illness of some kind. Such a principle might also be invoked, albeit rarely these days, when offences are committed “on the spur of the moment, either in hot blood or in drink or both”. However the fact that an offender is elderly and infirm, along with the other subjective and mitigating circumstances that were established on the applicant’s behalf, are not matters that generally lead to a diminution of the role of general deterrence.

26. [2017] NSWCCA 316 (with whom Simpson JA and Rothman J agreeing)

  1. As to the question of the impact of delay in sentencing on the question of general deterrence, the comments of RA Hulme J in R v Hall [27] must be borne in mind. His Honour referred to the comments of Howie J in R v Moon [28] where the later stated:-

[81]… In a case such as this where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the court.

27. R v Hall [2017] NSWCCA 313 at [71]-[74] (with whom Simpson JA and Wilson J agreed)

28. R v Moon [2000] NSWCCA 534

  1. Referring to these observations RA Hulme J stated:-

[71]… It has not been generally applied to the sentencing of offenders of otherwise good character for historical sexual offences; at least insofar as this Court is aware. The comment has been referred to in only a few subsequent cases. There are references in the judgments of Adams J in Versi v R [2013] NSWCCA 206 at [185] and of RS Hulme AJ in Henderson v R [2016] NSWCCA 8; 256 A Crim R 519 at [86] but they were each in dissent. The others were AJB v R [2007] NSWCCA 51; 169 A Crim R 32, GRD v R [2009] NSWCCA 149, PWB v R [2011] NSWCCA 84; 216 A Crim R 305 and RL v R [2015] NSWCCA 106.

[72] Each of these cases had some unusual features over and above a lack of further offending in the period between the offences and the sentencing and negligible prospects of re-offending. It can also be noted that those cases concerned historical sexual assaults upon children in a domestic context in contrast to the present case which involved, bluntly, a violent rape of a woman at knife point.

[73] In the present case, the primary judge was wrong to refer to Howie J’s comment in R v Moon at [81] as one that was “authoritative” in application to any case in which there was “delay in a matter’s disposition and there has been demonstrated rehabilitation in the meantime”.

[74] A more apt reference to R v Moon would have been paragraphs [70]-[71] which appear in the context of Howie J dealing with the general question of sentencing for historical offences. This passage was approved in R v MJR (2002) 54 NSWLR 368 at 384 [107]; [2002] NSWCCA 129 (Sully J, Spigelman CJ, Grove J and Newman AJ agreeing). This case involved a five-judge bench of this Court convened to consider the question of sentencing for historical offences when sentencing practices in the intervening period have moved adversely to an offender. Sully J agreed with the judgment of Spigelman CJ on the question of principle. His judgment otherwise dealt with the facts of the case at hand. He agreed with the following passage from the judgment of Howie J in R v Moon:-

“The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen(1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

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

  1. In the present case taking account of the age and health of the offender, there are no unusual circumstances identified for diminution in the role of general deterrence. In taking account of the offender’s subjective circumstances and other matters relevant to sentencing including general deterrence the Court is still required to impose a sentence reflecting the objective seriousness of the offences.

  2. It is not in issue that the offender is entitled to be sentenced on the basis of the sentencing patterns at the time of the offending.

  3. The Crown for its part referred me to a number of cases in this regard including Featherstone v R,[29] PWB v R [30] and MPB v R. [31]

    29. [2008] NSWCCA 71 at [36]

    30. [2011] NSWCCA 84 at [68] and [78]-[84] (RS Hulme)

    31. [2013] NSWCCA 213 at [103] (Garling J)

  4. The offender has referred me to statistics published on the JIRS data base.

  5. s 61E(1A) was in force between 23 March 1986 to 16 March 1991. The relevant higher court statistics for offences involving “person under authority” from January 2008 to March 2017 show that of the 21 cases 52% of case involved sentences of imprisonment. 38% received suspended sentences and 10% received s 9 bonds. The median sentence of imprisonment was 36 months. In the Local Court the statistics show 66% of cases receiving non-custodial penalties.

  6. In relation to s 61M(1) offences, the higher courts statistics show 53% received sentences of imprisonment, 37% suspended terms and 10% received s 9 bonds.

  7. The offender’s counsel also referred me to the Public Defenders website case summaries pointing to what it submitted was evidence of case law indicating that good behaviour bonds were within the realm of possibilities. [32] Three cases were specifically highlighted.

    32. Offender’s written submissions 22 September 2017 at p7

  1. The first was R v DCM. [33] That case involved a Crown appeal against the imposition of non-custodial penalties for 16 counts of sexual offences against children. In dismissing the appeal Loveday AJ described the circumstances as exceptional whilst Badgery-Parker J described them as extraordinary. These circumstances included that the offences occurred when the offender was aged between 70 and 76 diagnosed with dementia. It was accepted that the effect of the disease was to impair the offender’s judgment and impulse control. It was also noted that the offender had earlier and during the period of the offences made unsuccessful attempts to seek treatment.

    33. (Court of Criminal Appeal, 26 October 1993, unreported)

  2. A second case was R v Baxter. [34] This was also a Crown appeal against the imposition of bonds to be of good behaviour in respect of three offences under s 61E(2A) of the 1900 Act. These charges related to commission of acts of indecency not the more serious charge of indecent assault. In dismissing the appeal Hunt CJ at CL noted that the distinction was not insignificant and the principle in R v De Simoni prevented the more serious complexion which could be put on the facts. Further His Honour noted the sentences were within discretion bearing in mind the way the offender had been dealt with in respect of closely related but more serious offences in Victoria. McInerney J agreed with Hunt CJ at CL. Finlay J held the sentences imposed were insufficient but not so inadequate as to manifest error.

    34. (Court of Criminal Appeal, 26 May 1994, unreported)

  3. The third case was Peiris v R. [35] In that case the Court allowed a severity appeal and imposed suspended sentences of 14 months and 8 months in respect of two aggravated indecent assault offences contrary to s 61M(1) and (2) of the 1900 Act respectively. The offences were 4 years apart, with the first occurring in 2010 when the victim was aged 10 years. The charges were not representative counts.

    35. [2014] NSWCCA 58

  4. In my view, the cases citied on the part of the Defence had facts clearly distinguishable from those in the instant case. Indeed little was put referable to the objective gravity of the offending to justify the course advanced.

  5. In the case of s 61E(1A) of the 1900 Act, the maximum penalty is 6 years imprisonment. In the case of s 61M(1) the maximum penalty is 7 years imprisonment. I have regard to these as part of the process of instinctive synthesis bearing in mind the spectrum of offending they embrace. However for the reasons given the offender’s conduct can only be described as a disgrace and an appalling breach of trust by a person in authority on vulnerable young people spread over a period of some three years. The offending in combination is serious, involving two victims and occurring in the context I have described.

  6. Pursuant to s 5(1) of the 1999 Act, I am satisfied that no penalty other than imprisonment is appropriate.

  7. The Crown did not oppose a finding of special circumstances.

  8. Pursuant to s 44(2) of the 1999 Act as it now stands the balance of the term of the sentence must not exceed one third of the non-parole period of the sentence.

  9. However at the time of H62791027/1 the Parole of Prisoner Act 1966 did not prescribe a statutory ratio of parole to non-parole. The parties accepted that the relevant practice at the time was an additional term of around a third and a half.[36]

    36. R v Brian Joseph Spillane [2016] NSWDC 337 at [72]

  10. In relation to other counts, s 5(2) of the Sentencing Act 1989 applied until 2 April 2000 and provided that the additional term must not exceed one third of the minimum term unless the Court decides there are special circumstances.

  11. Having regards to the statutory arrangements in place at the time of the offences, the offender’s excellent prospects of rehabilitation and the fact that this will be his first time in custody, a finding of special circumstances is justified and I so find.

  12. I propose to proceed by way of aggregate sentence pursuant to s 53A of the 1999 Act. Pursuant to s 53A(2)(b) of the 1999 Act, I indicate the following indicative terms:-

  1. In relation to H62791027/1 but for his plea, I would have sentenced the offender to a term of 8 months imprisonment. Having regard to his plea, I would have sentenced the offender to 6 months imprisonment.

  2. In relation to H63328476/1 but for his plea, I would have sentenced the offender to 1 year and 4 months imprisonment. Having regard to his plea, I would have sentenced the offender to a term of 1 year imprisonment.

  3. In relation to H63328476/3 but for his plea, I would have sentenced the offender to 2 years imprisonment. Having regard to his plea, I would have sentenced him to term of 1 year and 6 months imprisonment.

  4. In relation to H63328476/5 but for his plea, I would have sentenced the offender to 2 years and 9 months imprisonment. Having regard to his plea, I would have sentenced the offender to 2 years imprisonment.

  1. In the formulation of indicative terms and setting the aggregate sentence I take into account in respect of H63328476/3 and 5 the offences on the Form 1, in accordance with the principles enunciated by Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.[37]

    37. (2002) 56 NSWLR 146; [2002] NSWCCA 518

  2. In setting an aggregate sentence I have regard to the principles of accumulation concurrency and totality noting the remarks in MC v R [38] and Denham v R. [39] The agreed facts and the Crown submissions acknowledged that criminality in the offending overlapped in various sequences. It is necessary to take this into account whilst not overlooking the separate character of each of the offences.

    38. [2017] NSWCCA 316 at [44]

    39. [2016] NSWCCA 309 at [111]

ORDERS

  1. For these reasons I order:-

  1. The offender is convicted of each count.

  2. Pursuant to s 53A of the 1999 Act, I impose an aggregate sentence of 3 years and 10 months imprisonment comprising a non-parole period of 2 years and 4 months to date from 18 December 2017 to 17 April 2020 and an additional term of 1 year and 6 months to date from 18 April 2020 to 17 October 2020 during which the offender is eligible to be released on parole.

**********

Endnotes

Amendments

22 January 2018 - 22 January 2017 - Para 100 - grammatical amendments.

Decision last updated: 14 December 2018

Most Recent Citation
Cases Citing This Decision

43

Kennewell v Rand [2006] ACTCA 10
Application of FD [2015] NSWSC 285
R v Banks, Craig [2021] NSWDC 827
Cases Cited

28

Statutory Material Cited

2

R v AJP [2004] NSWCCA 434
MLP v R [2006] NSWCCA 271
R v PGM [2008] NSWCCA 172