R v Van Ryn

[2016] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	R v Van Ryn [2016] NSWCCA 1
Hearing dates:	2 December 2015
Decision date:	10 February 2016
Before:	Leeming JA at [1]; Johnson J at [2]; R A Hulme J at [3]
Decision:	1. Crown appeal allowed. 2. Sentence imposed in the District Court on 9 September 2015 quashed. 3. Sentenced to an aggregate term of imprisonment of 18 years with a non-parole period of 13 years 6 months. The sentence will date from 10 December 2014. The offender will become eligible for release on parole at the end of the non-parole period which will expire on 9 June 2028. The total term will expire on 9 December 2032.
Catchwords:	CRIMINAL LAW – sentence – Crown appeal – sentencing judgment cited numerous principles and authorities but little exposure of reasoning – failure to assess objective seriousness of offences – no indication of whether general and personal deterrence and community protection factored into assessment of sentence – error in treatment of offences taken into account – error in having regard to possibility some offences could have been dealt with in Local Court   CRIMINAL LAW – sentence – Crown appeal – multiple child sexual assault offences against nine victims – respondent a paedophile – early pleas of guilty – early seeking out of treatment – prior good character – necessity for Court to make its own assessment of objective seriousness of offences – significant matters in mitigation cannot prevail over need to impose sentence proportionate to gravity of crime - aggregate sentence unreasonable and unjust – affront to the administration of justice – Court persuaded to exercise discretion to intervene – respondent resentenced
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Director of Public Prosecutions Act 1986 (NSW)
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Badans v R [2012] NSWCCA 97 Belghar v R [2013] NSWCCA 245 Benitez v R [2006] NSWCCA 21; 160 A Crim R 166 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Caristo v R [2011] NSWCCA 7 Carroll v The Queen [2009] HCA 13; 254 ALR 379 Clarke v R [2009] NSWCCA 49 CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308 Collier v R [2012] NSWCCA 213 Corby v R [2010] NSWCCA 146 Delaney v R; R v Delaney [2013] NSWCCA 150 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 Dousha v R [2008] NSWCCA 263 EG v R [2015] NSWCCA 21 Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 GSH v R; R v GSH [2009] NSWCCA 214 Hinchcliffe v R [2013] NSWCCA 327 JM v R [2014] NSWCCA 297 Langbein v R [2008] NSWCCA 38; 181 A Crim R 378 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Peiris v R [2014] NSWCCA 58; 240 A Crim R 114 PGM v R [2008] NSWCCA 172; 187 A Crim R 152 R v Cage [2006] NSWCCA 304 R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 R v Campbell [2014] NSWCCA 102 R v CMB [2014] NSWCCA 5 R v Doan [2000] NSWCCA 317; 50 NSWLR 115 R v El Masri [2005] NSWCCA 167 R v Fitzgerald [2004] NSWCCA 5; 59 NSWLR 493 R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 R v Gommeson [2014] NSWCCA 159 R v Harris [2007] NSWCCA 130; 171 A Crim R 267 R v Holder; R v Johnston [1983] 3 NSWLR 245 R v JP [2015] NSWCCA 267 R v KNL [2005] NSWCCA 260; 154 A Crim R 268 R v Lattouf; R v MF [2015] NSWCCA 283 R v Manners [2004] NSWCCA 181 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v MF [2015] NSWCCA 283 R v Porte [2015] NSWCCA 174 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v West [2014] NSWCCA 250 R v Wheeler [2000] NSWCCA 34 R v Wright (1997) 93 A Crim R 48 R v XX (2009) 195 A Crim R 38 RJA v R [2008] NSWCCA 137; 185 A Crim R 178 Ryan v The Queen [2001] HCA 21; 206 CLR 267 SHR v R [2014] NSWCCA 94 Simpson v R [2014] NSWCCA 23 SW v R [2013] NSWCCA 255 Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465 Wong v The Queen [2001] HCA 64; 207 CLR 584 WW v R [2012] NSWCCA 165 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category:	Principal judgment
Parties:	Regina (Appellant) Maurice Van Ryn (Respondent)
Representation:	Counsel: Ms S Dowling SC (Crown) Mr S Odgers SC with Mr C Heazlewood (Respondent)   Solicitors: Solicitor for Public Prosecutions David Griffiths Lawyers
File Number(s):	2014/178855
Decision under appeal	Court or tribunal: District Court Date of Decision: 09 September 2015 Before: Jeffreys DCJ File Number(s): 2014/178855

Judgment

1. LEEMING JA: I agree with R A Hulme J.

2. JOHNSON J: I agree with R A Hulme J.

3. R A HULME J: Mr Maurice Van Ryn committed 17 child sexual assault offences against 9 victims over an 11 year period from 2003 to 2014. He was sentenced in the District Court by Jeffreys DCJ on 9 September 2015 to an aggregate term of imprisonment of 13 years with a non-parole period of 7 years. The sentence was backdated to 10 December 2014. The respondent will become eligible for release on parole on 9 December 2021.

4. The Director of Public Prosecutions (NSW) on behalf of the Crown filed an appeal against the sentence pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) on 22 September 2015. The Crown contends that the sentence is manifestly inadequate and asserts that there are numerous errors in the judge's assessment of sentence that explain why that is so.

5. Mr Van Ryn (“the respondent”) contends that none of the asserted errors are made out; that the sentence is not manifestly inadequate; and that even if the Court found that it was, it was not such an affront to justice that the Court would be persuaded to exercise its discretion to intervene by increasing it.

6. I am of the view that the sentence is manifestly inadequate. There were a number of specific errors made by the judge in his approach to sentencing which may explain the inadequacy of the sentence. Even if the errors were not the cause of the inadequacy, the sentence is so unreasonable and plainly unjust that it amounts to an affront to the administration of criminal justice. The Court should exercise its discretion to intervene and impose an appropriate sentence.

Sentence details

7. The respondent pleaded guilty to 10 offences set out on one indictment ("the first indictment") and 4 offences set out on another ("the second indictment"). He also asked that his guilt in respect of a further 3 offences listed on “Form 1” documents be taken into account in the assessment of sentence for 3 of the offences to which he had pleaded guilty.

8. The judge imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). In doing so it was necessary for him to indicate the individual sentences that would have been imposed if he were not imposing an aggregate sentence (“indicative sentences”).

9. All of the offences were contrary to provisions of the Crimes Act 1900 (NSW). Standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 (NSW) were prescribed for most of them. In respect of those offences, it was necessary for the judge to also indicate the non-parole period he would otherwise have imposed. (His Honour did not comply with this requirement in respect of count 1 in the first indictment but that has no effect on validity: s 54B(7).)

Facts

10. The following summary of the facts pertaining to the respondent’s offending is drawn from a statement of agreed facts which was before the sentencing judge.

11. The respondent lived with his wife in the Bega district during the period of the offending. He was a prominent member of the community by virtue of his position as Chief Executive Officer of Bega Cheese Pty Limited. He also held a number of volunteer positions in the community. He and his wife lived in a large home with a swimming pool, spa and tennis court. Their children were all adults who had left home. The respondent knew each of his victims, mostly by association with their parents or grandparents.

Offences in the first indictment

Count 1 – Victim 1 – Between 1 December 2004 and 31 January 2005: Indecent assault of child under 16

Section 61M(1) – maximum penalty 7 years – SNPP 5 years.

Indicative sentence: 9 months.

12. Victim 1 was a 10 year old girl whose family had a practice of visiting friends in the Bega district during the summer school holidays. The two families would often visit and socialise at the respondent’s home. There was an occasion during the 2004 summer holidays when Victim 1 went to the respondent’s home with her parents and siblings. At some point she changed into her swimming costume and entered the pool. She remembered people getting in and out of the pool. At one point the respondent was sitting next to her and he placed his hands on the inside of her swimmers and felt her buttocks. He removed his hand and she moved away to sit with her mother. Sometime after this she was again seated next to the respondent and he placed his hand down the front of her swimmers and rubbed her genitalia. Victim 1 then got out of the pool and thereafter kept away from the respondent. She did not complain about his conduct because she was upset and confused by his actions.

Count 2 – Victim 2 – Between 1 January 2003 and 31 December 2007: Persistent sexual abuse of a child

Section 66EA – maximum penalty 25 years.

Indicative sentence: 8 years – NPP 4 years.

13. The family of victim 2 lived in the Bega district and were friends with the respondent’s family. Victim 2 suffered from bullying at school and as a result spent a large amount of time at home on his computer. He would visit the respondent’s home on most occasions that his parents did so. Victim 2 enjoyed being at the respondent’s home because he was able to use the swimming pool, spa and play computer games. The respondent befriended him and the pair formed a close relationship. He gave him small gifts, soft drinks and lollies and paid him for performing odd jobs. Victim 2 began spending time alone with the respondent. When he was aged between 10 and 11 the respondent initiated sexual contact with him. This involved him sitting next to victim 2 on the lounge and rubbing his upper thigh.

14. The respondent’s behaviour escalated to the point that when victim 2 was aged between 11 and 12 the pair would have a spa together. During those occasions he would place his hand on the upper thigh of the victim before moving it to touch his genitals. Victim 2 said this touching of his genitals happened “on a number of occasions”. It was an agreed fact that this conduct occurred regularly in the period when victim 2 was aged 12 to 14.

15. On one occasion when victim 2 was aged 12 the respondent sat beside him on the lounge and masturbated his penis while masturbating his own penis. The respondent then commenced performing oral sex on victim 2, continuing until he ejaculated. The respondent performed oral sex on victim 2 on a number of occasions up until he turned 15.

16. On another occasion when victim 2 was aged 13½ he was with the respondent in his home office. The respondent played a pornographic CD on his computer. He began masturbating victim 2 whilst masturbating his own penis. He then performed fellatio upon victim 2 before standing in front of him with his own erect penis near the face of victim 2. He placed his hands on the back of the boy’s head and attempted to pull his mouth towards his penis. Victim 2 turned his head away. The respondent said, “It’s okay, just try it”. Victim 2 declined but the respondent tried again to the point where his penis touched the mouth of victim 2. He then released the boy’s head and they put their clothes back on.

17. A similar incident occurred a few months later in the lounge room after the respondent began playing a pornographic movie on the television. It culminated in him attempting to insert his penis into the mouth of victim 2. Victim 2 kept his mouth closed but could feel the respondent’s penis pressing against his lips. The respondent said, “Just open your mouth up and stop tensing”. Victim 2 shook his head and the incident concluded.

18. When victim 2 was aged 14 he went with the respondent on an overnight stay to Canberra. The respondent picked him up from school on a Friday afternoon and they went to watch a rugby game in a corporate box owned by Bega Cheese at Bruce Stadium. After the game they travelled to a motel room where the respondent gave him alcohol which he consumed. As they were sitting on a bed the respondent put on a pornographic movie on his laptop computer. He then began masturbating victim 2 and performed oral sex on him. He stopped and put victim 2, who was naked, onto his stomach and then straddled him. Victim 2 could feel the respondent’s penis touching him between the cheeks of his backside. Victim 2 moved away and the respondent desisted. They then watched more of the pornographic movie and had another alcoholic drink before they went to separate beds.

19. There was another occasion when victim 2 went with the respondent to gather oysters on the Bega River. The respondent showed victim 2 a pornographic magazine and began rubbing victim 2’s penis. He was rubbing his own penis as he did so. He then performed oral sex on victim 2.

20. Another incident occurred when victim 2 was aged 14½. He was in the lounge room at the respondent’s house watching television. The respondent sat next to him and commenced masturbating him and himself and then removed their clothing. He knelt in front of victim 2 and tried to insert his penis into victim 2’s anus. Victim 2 wriggled and the respondent’s attempt failed. The respondent then rolled victim 2 onto his stomach and then achieved penetration of the boy’s anus with his penis. This caused victim 2 pain and he called out. The respondent removed his penis and they put their clothes back on. Victim 2 had bleeding from the anus shortly after and the respondent did not attempt anal sex with him again.

Count 3 – Victim 3 – Between 1 January 2010 and 31 December 2011: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

Indicative sentence: 12 months – NPP 6 months.

21. Victims 3 and 4 were brothers. Their grandparents lived in the Bega district and they would often stay with them. The grandparents were friends with the respondent and his family and often visited his home. Victims 3 and 4 would attend such social gatherings with their parents and grandparents when they were in the area.

22. There was an occasion when victim 3 was aged about 10 or 11 when he was at the respondent’s home with his family. A number of guests were either in or in the vicinity of the spa. Victim 3 entered the spa with a number of people including the respondent. At one point the respondent was next to him and reached across and inserted his hands into victim 3’s swimmers and took hold of his genitals.

Count 4 – Victim 4 – Between 1 January 2010 and 31 December 2011: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

Indicative sentence: 12 months – NPP 4 months

23. Victim 4 recalled an occasion when visiting the respondent’s home when he was 8 or 9 years old. He was in the downstairs area of the home playing with Lego. The respondent entered the room and asked victim 4 to sit on his lap and the boy did as he was told. The respondent placed his hand down the back of the boy’s shorts and rubbed his buttocks.

Form 1 offence in relation to Count 4 – Victim 4 – April 2014: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

24. The offence taken into account in the assessment of sentence for count 4 was a repetition of conduct which constituted count 6. The Form 1 offence involved the respondent for a second time and the same evening placing his hands into victim 4’s shorts and taking hold of his genitals.

Count 5 – Victim 4 – Between 1 January 2011 and 31 December 2012: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

Indicative sentence: 12 months – NPP 6 months.

25. On another occasion when victim 4 was visiting the respondent’s home when he was aged 9 or 10 there were a number of guests who were either in the spa or its vicinity. Victim 4 entered the spa with a number of people including the respondent. At one point the respondent reached across and inserted his hands into victim 4’s swimmers and took hold of his genitals.

Count 6 – Victim 4 – April 2014: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

Indicative sentence: 12 months – NPP 6 months.

26. On another occasion when victim 4 was aged 12 he was in the lounge room of the respondent’s home watching television when the respondent approached and placed his hand into victim 4’s shorts and took hold of his genitals. (The Form 1 offence described above occurred subsequently.)

Count 7 – Victim 5 – Between 1 December 2011 and 31 January 2012: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

Indicative sentence: 3 years – NPP 18 months.

27. The family of victim 5 lived in the Bega district and developed a close friendly relationship with the respondent and his family. Victim 5 recalled an occasion during the summer holidays of 2011/12 when he was 13 years old. Victim 5 was in the computer room intending to download some music from the respondent’s computer to victim 5’s iPod. The respondent approached and opened the front Velcro section of victim 5’s board shorts and took hold of his penis. He commenced stroking it and as he did so he said, “One day I am going to put my mouth around it”. Victim 5 was shocked and remained seated.

Form 1 offence in relation to Count 7 – Victim 5 – 23 July 2014: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

28. On 23 July 2014, victim 5 was being given a driving lesson by the respondent. As victim 5 was driving the respondent placed his hand on to victim 5’s thigh. Victim 5 attempted to move his leg away but the hand remained on his thigh. At one point the respondent leant across and tried to kiss the side of his face but victim 5 pulled his head away.

Count 8 – Victim 6 – Between 1 January 2011 and 31 December 2012: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

Indicative sentence: 12 months – NPP 6 months.

29. Victim 6 was a sibling of victim 5. He recalled an occasion when he was about 13 years of age when he was in the computer room of the respondent’s house looking at a movie on the computer. The respondent knelt beside him and put his hand on his knee and then moved it to his groin. He then put his hand under victim 6’s shorts and took hold of his penis and commenced to rub it. Victim 6 said he was scared and just sat there.

Count 9 - Victim 7 – Between 1 January 2004 – 31 December 2005: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

Indicative sentence: 12 months – NPP 6 months.

30. Victim 7 grew up with his family in the Bega district and would often spend time at the respondent’s home. He recalled an occasion when he was 13 years old when he and some other boys and adults were there. At one point the respondent picked victim 7 up and carried him to a quiet area of the pool. The respondent positioned himself so that he had his back to the other persons in the pool area. He said to victim 7, “Do you want to be my special friend? You can be my special friend.” As he was saying this he was tickling victim 7 but then moved his hand down his chest to his groin. He then began fondling victim 7’s genitals on the outside of his board shorts. This continued for about a minute until someone approached.

Count 10 – Victim 8 – 5 June 2014: Aggravated act of indecency towards child under 10

Section 61O(2) – maximum penalty 7 years.

Indicative sentence: 9 months.

31. Victim 8’s family were regular visitors to the respondent’s home. On the evening of 5 June 2014, when victim 8 was aged 8, she was in the downstairs area of the home playing with some toys. The respondent’s wife and victim 8’s mother were upstairs. The respondent approached her with his pants open and with his penis exposed. He walked towards her and put his hands on her arms and moved them towards his body. She pulled her arms away from him and walked away. She left the house with her mother shortly after. On the drive home she disclosed what had happened to her mother. Her mother contacted the respondent’s wife and let her know what had happened. Police were then contacted.

Offences in the second indictment

Count 1 – Victim 9 – Between 1 January and 20 December 2010: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

Indicative sentence: 12 months – NPP 6 months.

32. Victim 9 moved with his family into the area in early 2010 and they became acquainted with the respondent. Victim 9 was aged 15. The respondent offered victim 9 the opportunity to use the facilities at his home including the swimming pool, spa, computer equipment and tennis court. A relationship developed to the point where victim 9 saw the respondent as a father figure and role model and he visited the respondent on a very regular basis.

33. On an occasion in early 2010 the respondent and victim 9 were in the spa when the respondent placed his arm around victim 9 and lifted him onto his lap. Victim 9 felt that the respondent had an erection which he felt against his back. Victim 9 did not say anything when this happened because he “froze”, was embarrassed and not sure what to do.

34. Victim 9 said that this occurred on most occasions that he was in the spa with the respondent up until December 2010.

Offence taken into account in relation to Count 1 – Victim 9 – Between 1 January and 20 December 2010: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

35. On one of the occasions when the respondent was in the spa with victim 9, he moved victim 9 onto his lap and victim 9 could feel the respondent’s erect penis against his back. The respondent placed his hand inside victim 9’s swimmers and pulled them down. He could then feel the respondent’s erect penis rubbing against his buttocks. The respondent was groaning as he did this. Again, victim 9 did not say anything because he “froze”, was embarrassed, and not sure what to do.

Count 2 – Victim 9 – Between 1 January and 20 December 2010: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

Indicative sentence: 2 years 6 months – NPP 15 months.

36. On another occasion victim 9 was in the spa the respondent placed his hand inside victim 9’s swimmers, held his penis and masturbated him. Victim 9 said he did not say anything when this happened for the same reasons earlier indicated. Victim 9 said that this type of incident occurred on most occasions that he was in the pool or spa with the respondent or was using the respondent’s computer.

Counts 3 and 4 – Victim 9 – Between 1 January and 20 December 2010: Aggravated sexual intercourse with child aged 14 to 16

Section 66C(4) – maximum penalty 12 years.

Indicative sentences: 4 years – NPP 2 years.

37. On one occasion when victim 9 was visiting the respondent’s home they were watching movies together. The respondent placed his hands down the front of victim 9’s pants and commenced masturbating him. After about 5 minutes the respondent removed victim 9’s lower clothing. He then performed fellatio on victim 9 who was seated on a couch. The respondent then took hold of his arms and moved him onto the floor. The respondent inserted his penis into victim 9’s anus. Victim 9 felt immediate pain. The respondent began thrusting his penis into victim 9’s anus causing more pain. The respondent said, “Does that feel good?” Victim 9 replied, “No it hurts”. The respondent said, “Can I cum inside you?” Victim 9 replied, “No”. The respondent had anal intercourse for some 5 minutes before he stopped after victim 9 indicated he was feeling pain.

38. Victim 9 said that the respondent had penile/anal intercourse with him on about 3 separate occasions but could not identify the other occasions with specificity. He said the respondent performed fellatio on him at least 15 to 20 times during 2010.

39. Victim 9 moved away from the area in 2013. In 2014 he became aware that the respondent had been charged. He made contact with a counselling agency before contacting police in May 2014.

Personal circumstances of the respondent

40. The respondent was aged 60 at the time of sentencing. He had been married for 34 years and had 3 adult children. He was described as having had a positive childhood and had not been exposed to violence or sexual abuse. He had a degree in business studies and had a very successful career in business, working as an accountant with Elders IXL for 10 years and then with the Bega Cheese company for 26 years.

41. He was the chief executive officer of Bega Cheese until he stood down in 2006 and took up a role as international business manager. The company became very successful under his stewardship. He retired at the end of 2012 and then performed some part-time work for a pharmaceutical company.

42. The respondent gave evidence in the sentence proceedings and a number of documents were tendered. They included reports by Dr Bruce Westmore and Dr Jeremy O’Dea, forensic psychiatrists, and by Dr Donald Rowe, neuropsychologist. There were also a statement by the respondent’s wife and a bundle of character references.

43. The respondent has no criminal history in New South Wales but was dealt with for an offence of indecent exposure in Victoria in 1981.

Dr Bruce Westmore’s report of 17 January 2015

44. Dr Westmore assessed the respondent shortly after he was arrested in July 2014. He referred the respondent to Dr O’Dea for treatment and reassessed him in January 2015.

45. Dr Westmore reported that the respondent had told him that he had pleaded guilty to 12 counts of “indecent assault basically”.

46. The respondent told Dr Westmore that all of the offences occurred in his own home. He accepted that he had inappropriate relationships with the victims, “But they all loved being with me and unfortunately, I loved being with them. None of them ever turned on me for what I did to them”.

47. Dr Westmore had available to him the Court Attendance Notices and the Statement of Facts. He said, “I note behaviour consistent with grooming and the detailed description of the offending behaviour in relation to each of the victims”. He indicated that the respondent was not denying any of those details.

48. The respondent told Dr Westmore that his marriage had been a generally happy one and that he had a satisfactory sexual relationship with his wife although in recent years the frequency of intimacy had decreased.

49. The respondent described sexual attractions and fantasies which included younger women and sometimes teenagers and also, some less frequent fantasies involving pre-adolescent children. Dr Westmore said that the respondent’s principal non-adult based sexual focus appeared to be directed towards children who are in the transition between being pre-pubertal into early puberty. He also acknowledged longstanding and repeated fantasies of exposing himself. His sexual thoughts, feelings and impulses towards very young teenagers, mainly girls but sometimes boys, had been more persistent and intrusive and had represented a problem for him for many years.

50. The respondent confirmed to Dr Westmore that he had been seeing Dr O’Dea and had commenced with anti-libidinal medication in November 2014. He told Dr Westmore that within two weeks his testosterone levels had reduced significantly and “the change that happened to me mentally was staggering. It was like a veil had been lifted, a breath of fresh air. Prior to the medication, most of my days were associated with inappropriate thoughts but, within a space of two or three weeks, my life changed mentally.” He also said that “the constant intrusive inappropriate fantasies just weren’t there anymore”. He also said, “the tragedy of all of this is, you don’t see ads on television (that say), if you are this way (sexually attracted to children), you can do something about it”. He wondered why there was not more proactive information about these particular sexual problems.

51. The respondent told Dr Westmore that he had continued taking the medication after going into custody in December 2014 and intended to keep doing so, including after release. He also said that he would be “more than happy” to attend a sex offenders program.

52. The respondent said that he continued to receive strong support from his wife and three children and expects that this will continue when he returns to the community.

53. Dr Westmore asked the respondent whether the offending behaviour was wrong and the respondent replied, “Of course it was wrong, it is illegal and if it negatively and hurtfully hurt the victims (it was wrong)”. He acknowledged a breach of trust: “I abused that trust that their parents gave me and the kids themselves gave me and for that, I’m eternally regretful”.

54. The respondent spoke of being in protection as a “limited association prisoner” although he reported having no major difficulties; he got on with the officers and other inmates. He received a lot of visits from family members.

55. Dr Westmore described the respondent as presenting with complex Paraphilic Disorder. He diagnosed him as suffering from an Exhibitionistic Disorder (sexually aroused by exposing genitals to pre-pubertal children). He also considered it appropriate to make a diagnosis of Paedophilic Disorder (non-exclusive type – sexually attracted to both males and females). He noted that the respondent’s self-reported aberrant sexual focus is towards pre-pubescent children who are entering early pubescence. Dr Westmore queried whether others might debate whether the respondent’s condition was more consistent with Hebephilia. However he thought that was probably more of a semantic issue. Noting the age range of the victims (8 to 15) he thought the respondent might have both conditions.

56. Dr Westmore said that people who suffer from Paraphilia, such as the one suffered by the respondent, have a genetic/constitutional vulnerability to behave in such a way. The paraphilic component of the respondent’s sexual profile was an integral part of his “sexual orientation”. Dr Westmore did not believe that that component can be changed, altered or extinguished, but believed that, with appropriate psychiatric intervention, aspects of it could be contained and controlled.

57. Dr Westmore said it was too early to pass any definitive opinions in relation to the respondent’s long-term risk but there were some early positive indicators which might suggest that his long-term risk of re-offending is in the lower range. In this regard, Dr Westmore said:

“I note his positive biological response to the introduction of the antiandrogen medication, along with the self-reported positive psychological changes, which have occurred since he has been on this medication. I note he continues to receive strong support from his wife, mother and children and he has reasonably good insight into the wrongness of his actions, how he betrayed the trust of others, including the children, when committing the offending acts. His positive attitude towards his past, current and ongoing treatment is also a positive prognostic indicator, as is his willingness to attend a Sex Offenders’ Programme whilst in custody.”

58. Dr Westmore also acknowledged limitations associated with risk prediction. The extent to which the respondent participated in a sex offenders program would be important as would his ongoing willingness to take medication in the long-term, and perhaps for the rest of his life. He considered that the respondent would need to remain under the care of a psychiatrist indefinitely.

Dr Jeremy O’Dea’s reports of 30 January 2015 and 5 August 2015

59. The respondent had seven consultations with Dr Jeremy O’Dea between the referral from Dr Westmore in July and when his bail was revoked in December 2014. Dr O’Dea saw him again on 24 January 2015 and provided a report a short time later.

60. Dr O’Dea’s report included an account of the offence of indecent exposure committed in Melbourne in 1981. The respondent told Dr O’Dea that he had been driving his car at dusk one evening when he had his penis out. He said it was not erect and he was not masturbating. When he stopped at traffic lights a paperboy aged about 12 saw him and took his registration number. As a result the respondent immediately went to the police station and gave himself in. He received a fine and a bond with a condition that he attend a psychiatrist. He said that he had six to eight counselling sessions with a psychiatrist over four to six months.

61. (This account of the 1981 offence is at odds with what the respondent told Dr Rowe who said that "he reported being caught masturbating in his car".)

62. Dr O’Dea noted the various offences to which the respondent had (at that stage) pleaded guilty and noted that they included “apparent grooming behaviours, and repeated sexual relations with a particular male child … including anal intercourse”. The respondent told him that the majority of his sexual offences against children “have been in my house … not outside … on my turf … after a period of friendship …”.

63. The respondent reported lifelong specific and strong sexual fantasies and urges towards both male and female children. These urges had been experienced on a daily basis in the past. He said, “I thought they were my fantasies … that most of my life I could control them and keep them as fantasies”. He also told Dr O’Dea of experiencing problems with exhibitionism which he described as a longstanding issue since his teenage years.

64. Dr O’Dea reported that the respondent said that he had a satisfactory sexual relationship with his wife.

65. In describing the respondent’s presentation at interviews, Dr O’Dea said, “He has shown remorse, regret and contrition for his actions in relation to his paedophilia, exhibitionism and sex offending behaviours.” (The doctor did not say how.)

66. Dr O’Dea diagnosed the respondent as suffering from “Paraphilic Disorders, namely Paedophilic Disorder, sexually attracted to both males and females, not limited to incest, predominant if not exclusive (so called Bisexual Paedophilia); and Exhibitionistic Disorder (Exhibitionism)”.

67. It was Dr O’Dea who prescribed anti-libidinal/testosterone lowering medication to the respondent in November 2014. He described this being considered the most effective treatment for the respondent’s diagnosed condition. After several weeks the respondent reported not having any sexual fantasies towards children. Testing by Dr O’Dea showed a significant reduction in testosterone levels. When the respondent was reviewed by Dr O’Dea in custody on 24 January 2015 he spoke of being in control of his paedophilic urges and fantasies and wanted to continue the medication through to his eventual release into the community.

68. Dr O’Dea said that the respondent would require ongoing forensic psychiatric assessment and treatment in the community in the long-term aimed at assisting him to successfully manage and minimise the risk of him engaging in further sex offending behaviours.

69. Dr O’Dea said that the type of paedophilia suffered by the respondent would be generally considered a form of sexual orientation that people would not necessarily choose. The treatment, including the anti-libidinal medication, was not a cure but allowed a patient to control and/or extinguish urges and fantasies and therefore control and extinguish abhorrent behaviours, thereby conducting themselves safely in the community.

70. Dr O’Dea provided a second report after being advised of the further charges that came to be placed on the second indictment. He said that those additional offences did not alter the substance of the opinions that he had expressed previously.

Dr Donald Rowe’s reports of 4 February 2015 and 23 July 2015

71. The respondent saw Dr Rowe in November 2014 and January 2015. The history he gave included masturbation on an average of twice per day prior to receiving anti-libidinal medication. Dr Rowe opined that this was abnormal and a symptom of hypersexual behaviour.

72. The respondent told Dr Rowe of a “relatively normal sex life with his wife for approximately 20 years, after which it began to decline with little or no sexual intimacy for the past 5 to 10 years”. Dr Rowe noted the coincidence of an absence of sexual relations with his wife with the commencement of the alleged offences in 2004. It was Dr Rowe’s opinion that this “most likely contributed in part to more wayward avenues of sexual excitement and relief”.

73. The respondent told Dr Rowe that he “semi-retired” in 2004/2005 which left him with additional recreational time. Again, Dr Rowe noted the coincidence with the commencement of the offences. He wrote:

“In my opinion, the series of changes relating to an absence of sexual relations with his wife, reduced access to more legitimate avenues of sexual relief and his semi-retirement, in the context of what was a hypersexual disorder, most likely contributed to his abnormal touching of children and adolescents (due to having more time and contact) and eventual sexual behaviours with some of those young people. Mr Van Ryn due to being less occupied and more sexually frustrated would have also had more time to think about and focus on his deviant sexual obsessions and inadvertently at times involved pre-pubescent and pubescent children”

74. The respondent’s report of an average of 14 and up to 28 orgasms per week throughout his adult life, generally obtained through masturbation, in addition to frequent thoughts of sexual acts, brothel visits and unprotected sex, were consistent with a chronic case of hypersexual behaviour.

75. Dr Rowe noted a high incidence of childhood ADHD in individuals with hypersexual disorder (17 %) and of those with both hypersexual disorder and a paraphilic disorder (50 %). He reviewed the respondent’s high school reports and noted that his “scholastic background is consistent with the presence of ADHD type features and a probable diagnosis. Neuropsychological testing administered and interpreted by Dr Rowe confirmed in his mind a diagnosis of “high functioning ADHD”. He wrote:

“Notably, ADHD is associated with deficits weaknesses [sic] in the area of executive functions which are important for the maintenance of planning, organisation, self-monitoring, response inhibition/impulsivity, reasoning, consequential thinking, decision making and careful judgment. Such individuals are at risk of committing various criminal offences as shown in clinical and forensic studies.

However, patients with ADHD alone do not necessarily commit criminal acts but in the presence of other factors such as hypersexuality and certain environmental factors the individual may not be able to sufficiently inhibit their strong sexual impulses or other impulsive behaviours.”

76. Dr Rowe cited the offence committed against victim 8 (count 10) as an example of the effects of ADHD and hypersexual disorder. The respondent had told Dr Rowe that the victim and her mother had spent the prior two weeks with him and his wife. He said that there was a lot of playful and physical contact between himself and the victim. He told Dr Rowe, “I had a brain snap and quickly realised what I was doing was wrong and covered up … I didn’t have an erection”.

77. (I note that this is inconsistent with the agreed statement of facts which says that the victim and the mother were at the respondent’s premises on the relevant evening for a meal and the child disclosed to her mother what had occurred on their way home. Further, the claim to having had a "brain snap" is seemingly at odds with the agreed fact that the respondent approached the child whilst she was alone in a downstairs area of the house playing with toys while her mother and the respondent's wife were upstairs.)

76. Dr Rowe summarised the significance of his findings of the respondent having ADHD, Hypersexual Disorder and Paedophilia/Hebephilia as follows:

“Individuals, with each of these conditions alone, ADHD, HD and/or Paedophilia/Hebephilia do not necessarily commit criminal acts. However, as a result of their somewhat extreme interests and behavioural tendencies, like the respondent, they may be more physical and impulsive (without thought) in their interactions, such as leading to behaviours akin to sexual groping or molestation.

The problem arises when such individuals are exposed to situations where their sexual drive is insufficiently satisfied and due to their underlying sexual impulsivity and paedophilic/hebephilic tendencies they are attracted to the idea of sexual relations with children and adolescents and if untreated inadvertently can act on these impulses, like that which occurred in the case of the respondent, as described in the NSW Police Facts Sheets.

In my opinion, had the respondent not suffered from a combination of ADHD and/or HD he is likely to have been able to better inhibit his paedophilic behaviours. Or had he continued to remain in full time employment from 2004 onwards having less contact with young people and greater contact with adults, including more appropriate adult sexual interactions, it is most likely he would not have participated in such illegal behaviours.” (Emphasis added)

79. Dr Rowe also reported that the respondent had suffered “deep regret and depression” over the experience. The respondent had said that he knew that what he was doing was wrong but at the time had not considered the consequences. He also acknowledged that “he had caused hurt to his family and was concerned about any potential damage he had inflicted on the victims”.

80. Dr Rowe noted that the respondent had commenced taking anti-libidinal medication. He considered that he had displayed a motivation to treat his condition. The respondent had said to him, “If only these sorts of medication treatments were advertised for individuals with my sort of problem”.

81. On the subject of risk of re-offending, Dr Rowe said:

“In my opinion, given the respondent’s acknowledgement of the illegality of his offences and if he were to continue with the full treatment program (which I have recommended in Appendix A and which he has partly commenced), then the likelihood of him suffering a relapse or reoffending would be significantly reduced and in all likelihood become increasingly negligible.”

82. Dr Rowe provided a further report after being advised of the further offences in the second indictment. He, like Dr O’Dea, confirmed that they did not alter his previously expressed opinions.

Statement by the respondent’s wife

83. A letter by the respondent’s wife was tendered which spoke extensively of the achievements he had made whilst CEO of the Bega Cheese company. She also outlined the charitable and other good works the respondent had provided to the Bega Valley community. Ms Van Ryn spoke of a number of negative aspects of the media publicity the case had attracted including some distressing events directed at her. She confirmed her commitment to support the respondent in the future. She said, “I have full confidence that he is totally remorseful for his action and wants nothing more than to redeem himself”. (What led her to think that he was "totally remorseful" was not explained.)

Character references

84. The respondent’s various positive attributes and his commitment and contribution to the local community were confirmed in a body of character references.

85. On the subject of remorse, a retired teacher said, “Maurice has shown remorse and is doing everything in his power to amend his behaviour”. His uncle wrote, “He is genuinely sorry for what he has done and now truly realises the harm that can often flow from actions such as this”. A former manager at Bega Cheese who had maintained both business and social contact with the respondent said that he had “expressed to me his regret and remorse on many occasions for his past actions”.

Evidence by the respondent

86. The sentence hearing commenced before Jeffreys DCJ at the Bega sittings of the District Court on 4 February 2015. The first indictment was presented and pleas of guilty were entered. It should be noted that the respondent had previously entered pleas of guilty in the Local Court on 25 November 2014.

87. The respondent gave evidence when the hearing resumed on 26 February 2015. He confirmed that he had told the truth to the authors of the various reports and that what appeared in them accurately represented what he had said. He accepted the diagnosis of Paraphilic Disorder and he confirmed that he had been sexually attracted to children since his early teens.

88. In relation to the indecent exposure in Victoria in 1981, the respondent said that he saw a psychiatrist for two or three months over six to eight consultations but he did not derive any benefit from it.

89. He was asked by his counsel to explain why the offending started in 2004 and he said, that he could not: “I think it’s fair to say that the control that I had over those sexual urges that I had, there were those odd moments unfortunately when I didn’t exert the control that I should have”. (Emphasis added)

90. He agreed that he knew that what he was doing was wrong and that it was against the law. He was asked whether he knew that it carried a risk of harm to children and he said that whilst it was not in the forefront of his mind at the time but he understood there was a “potential” risk of harm to children. He repeated that he “wasn’t able to resist that urge that hit me at that moment … it was an urge to touch basically … I just did not have the control and I touched”.

91. The respondent was reminded that the offending progressed beyond touching and he said, “It did in one case”. (He had not been charged with the offences on the second indictment at that time.)

92. He was asked whether he groomed any of the children in the sense of engaging in behaviour designed to make them receptive to sexual offending and he gave a categorical denial. He denied planning any of the assaults and maintained that they were “all opportunistic at a moment in time”.

93. He was asked whether he was aware of the existence of anti-libidinal medication prior to 2014. He said he was not and “that’s a real part of the tragedy of the story”. He added, “I’ve been pretty upset about the fact that there were things out there I could have done that I have never known about”.

94. He gave the following evidence on the subject of remorse:

“Q. Do you wish to say anything to the victims of these offences and their families?

A. It’s very emotional for me to do so because the parents - most of them are here - and the victims were quite frankly our dearest and closest friends. We had something special … where we socialised virtually on a daily basis and a few minutes of stupidity on my part wrecked something that was really good and really special so obviously I am extremely regretful about what happened, I am extremely sorry for any harm I might have hurt those kids, I’m really, really sorry that we destroyed friendships and relationships that were special, long-lasting, and you know if I could turn back the clock and get those friends back I certainly would try and do so.” (Emphasis added)

95. Evidence was given about the conditions of custody he had experienced and he referred to being the subject of verbal abuse and accepted that he would always require protection within the prison system.

96. In cross-examination the respondent was asked about his reference to “a few minutes of stupidity” and it was suggested to him that he was “playing it down somewhat”. He replied:

“A. I don’t believe it is. With I think it’s 9 of the 10 counts they’re activities that range between 15 seconds and a minute. With regard to the one particular boy where there was a longer term relationship yes that’s a little bit different but with 9 of the 10 those activities were somewhere less than a minute.

Q. You accept don’t you that what you did wasn’t just stupid it was grossly criminal?

A. Of course.”

97. The offence taken into account in relation to count 7 involved an incident that occurred a short time after the respondent had been arrested and he gave the following evidence about it:

Q. You were arrested in relation to an incident in the June of last year?

A. Yep.

Q. And then there was a further incident that occurred which is one of the counts on the Form 1 whilst you were on bail?

A. Yes.

Q. Did the shock of being arrested in the middle of 2014 not bring you to your senses?

A. Let’s talk about what the incident was. It was a hand on a knee and an attempted kiss and I reckon that’s pretty thin for an indecent assault.

Q. Well in circumstances where you had previously been involved in more serious sexual activity you don’t consider that that was a sexually motivated act?

A. No it was not.

Q. But you have given evidence that you felt sexually attracted to children without this treatment?

A. (No verbal reply)

Q. Without this medical treatment - you said you had constant thoughts of sexual attraction to children?

A. Yep.

Q. Well you hadn’t had the treatment by then, by the time you committed that further offence on bail?

A. Yeah but I had a very very close relationship and I’m not talking sexual, I had a very very close relationship with these particular people you’re talking about and for me to put my hand on their knee or around their shoulder or whatever the case may be was literally a regular occurrence which was not considered by me or by them as a sexual event.

Q. What about kissing a young boy?

A. Well, it was an attempted kiss and it didn’t get there and it was - you know it was a bit of a fun joke thing at the time, what can I say.

Q. Is it the case that you received sexual gratification when you did these acts that you have pleaded guilty to?

A. Yep. (Emphasis added)

98. He was pressed as to his denial of grooming behaviour. He denied that there were incentives for the victims to be at his house. He explained that he had a “very, very open house and a very, very sociable house” at which not only children but their parents and friends were welcome. He described himself as “an extremely hospitable person”. He was asked whether having things such as pay TV, a pool, and a spa were things that attracted children but he said he could not see the point and asked rhetorically, “What am I going to do, fill in the swimming pool?” He agreed, however, that he did not do anything to discourage children from coming to his home.

99. In relation to victim 2 the respondent accepted that the events the subject of the persistent child sexual abuse charge spanned a four year period and covered a wide variety of activity up to and including intercourse. He maintained however that they were spur of the moment or spontaneous acts. He was pressed by reference to the trip to watch the rugby game in Canberra where he stayed overnight with victim 2 in a motel room. It was suggested that he would have had it in his mind that there would be sexual contact during that trip but he said, “Not necessarily, no”.

100. Further on the question of remorse, there was the following evidence:

“Q. With your apology to the family, is that in relation to the breach of the trust or in relation to the harm that’s been carried out against these children?

A. Everything - as I think I said in my apology, I apologised to the victims themselves for any harm I may have caused them. The apology is for a lot of things. It’s for you know abusing the trust they gave me, it’s for destroying a fantastic - fantastic friendships and a fantastic lifestyle that we had … , so it’s an all-embracing apology.

Q. Do you see the breach was not just against the parents of the children, but the children themselves?

A. Of course.”

Report of Professor David Greenberg of 15 April 2015

101. The sentence hearing was adjourned to Sydney on 20 April 2015. At that point the Crown tendered a report of Professor David Greenberg of 15 April 2015. Professor Greenberg is a forensic psychiatrist who described himself as an internationally recognised expert in the area of sex offenders and treatment of paraphiliac disorders. Professor Greenberg had not conducted an assessment of the respondent but had reviewed the documentary evidence including the reports of Drs Westmore, O’Dea and Rowe.

102. Professor Greenberg, speaking generally, said that “sexual child predators often use grooming behaviours which are deliberate tactics such as befriending and establishing an emotional connection with a child to lower the child’s inhibitions and gain their trust in order to sexually abuse them”. He referred to references in the documentary material to the respondent having a home with a spa, swimming pool, a computer and computer games. He noted that access to these would have been attractive to young children. He also referred to the agreed fact that the children were provided with small gifts, lollies and soft drinks. He referred to the use of pornographic material in relation to some of the children. There was also the reference to victim 2 having been shown pornography and provided with alcohol on the trip to Canberra. Reference was also made to the outing to the Bega River to gather oysters and, in respect of victim 5, giving a 15 year old boy a driving lesson. Professor Greenberg continued:

“These related behaviours are in my view all common grooming activities used by paedophiles to entice children and to obtain their trust and compliance of these children with intended later sexual activity”.

103. Professor Greenberg agreed with the diagnosis of Drs O’Dea and Westmore that the respondent likely had a Paedophiliac Disorder. He noted that Dr Rowe had referred throughout his report to the respondent having “paedophilic tendencies” but pointed out that the respondent met the DSM-IV criteria for having a Paedophiliac Disorder.

104. Professor Greenberg also agreed that the respondent likely had a “Hebophilic Activity because of sexual activity also involved these children during their pubertal development [sic]".

105. Professor Greenberg was critical of Dr Rowe’s apparent acceptance of the respondent’s claim in relation to the offence in count 10 that he had a “brain snap”. He said that paedophiliac activity is associated with "goal directed behaviour"; "there is often planning and intentional behaviour to get access to children".

106. Reference was made to Dr Rowe’s diagnosis of the respondent having “high functioning Attention Deficit Hyperactivity Disorder”. Professor Greenberg said that whilst the respondent may or may not have ADHD, persons with such a disorder do not sexually abuse children. He saw no causal relationship between the respondent having that condition and his sexual molestation of eight children over a decade. He noted that the respondent had tertiary qualifications and had worked at a high level in a business for many years and said, “It is therefore questionable how these deficits or weaknesses in executive functioning was of great significance in his decision making, reasoning, consequential thinking and careful judgment”.

107. Professor Greenberg took issue with Dr Rowe’s diagnosis of the respondent having Hypersexual Disorder. He noted that it was not accepted in the DSM-V or any earlier versions as being a mental disorder. “The acceptance of such a condition as a disorder has not gained wider acceptance in the general clinical sex offender expert community as yet and its validity has been questioned by some researchers”.

108. Reference was made to the differing accounts given by the respondent to Drs Westmore, O’Dea and Rowe about his sexual experience with his wife. It was Professor Greenberg’s opinion that, “not having a sexual outlet with his wife is not a causative factor for paedophiliac behaviour and lack of sexual outlet cannot be used to justify his paedophilic behaviour”. Professor Greenberg noted that “individuals with a Paedophiliac Disorder often deny, minimise and justify their behaviour”.

109. He also disagreed with Dr Rowe’s assessment that if recommendations for treatment were implemented, the likelihood of the respondent having a relapse or re-offending would become increasingly “negligible”.

110. Professor Greenberg concluded his review of Dr Rowe’s report as follows:

“I therefore cannot concur with Dr Rowe’s opinion that the respondent’s absence of sexual relations with his wife, reduced access to more legitimate avenues of sexual relief and his semi-retirement as well as his “hypersexual disorder” and his high functioning Attention Deficit Hyperactivity Disorder significantly contributed to him committing his sexual offences. Although Dr Rowe’s theoretical model of the respondent’s sexual offending against eight children, may or may not be true, this view would not be the accepted view of most experts working with paedophiles.”

111. Professor Greenberg agreed with Drs Westmore, O’Dea and Rowe that with psychosexual treatment combined with anti-libidinal treatment the respondent’s risk of re-offending may possibly or likely be reduced. He added, “Although less likely, it may over time not be reduced because there is no cure for this disorder”.

112. Generally on the subject of anti-libidinal treatment, Professor Greenberg said that many sex offenders who voluntarily undertake such treatment use it until such time as their parole expires. The treatment is voluntary and is often ceased at that point. Such treatments cannot be enforced on any individual. Moreover, individuals may also develop medical complications and may have to cease treatment as a result.

Oral evidence of Professor Greenberg

113. Professor Greenberg was called to give evidence. He maintained his view that if the respondent did suffer from ADHD it did not have any significant role to play in the causation of his paedophilia activity. He was informed that the respondent had described his offending behaviour as “minutes of madness” (in fact “a few minutes of stupidity”). He gave this evidence:

“Q. Is describing the sexual activity that he’s pleaded to as “minutes of madness”, in your view, symptomatic of people with this disorder they try to minimise?

A. Yes, they often justify, minimise, deny, rationalise their behaviour.”

114. In cross-examination Professor Greenberg was tested as to his inability to see the link between ADHD and the offending. His response was to the effect that it was necessary to distinguish between impulsive behaviour generally and sexual impulsivity.

115. The sentencing judge took up the questioning on this subject and Professor Greenberg explained that if there was impulsivity in terms of a lack of control by somebody with ADHD "it would apply to all actions, it wouldn't be specifically only with sexual behaviour with children".

116. In relation to Dr Rowe’s diagnosis of Hypersexuality Disorder, Professor Greenberg expressed the need for caution in that it was based on self-report by a person facing legal sanction.

117. Lastly Professor Greenberg was asked about “grooming behaviours” used by child sexual predators and referred to the opinion expressed in his report that the facts of the respondent’s offences included a description of activities consistent with grooming. He maintained that they were consistent, “in the context of having eight children who were reportedly sexually abused”. He agreed that this could have been conduct carried out with an intention or a plan to create opportunities for sexual activity but he agreed that this was not necessarily the case.

“Q. In order - and I’m focusing on the latter, you accept that it’s while the conduct was consistent with ‘intentional grooming’ if I might use that phrase it was not necessarily a situation of intentional grooming?

A. It may not be, yes that is correct, I mean people with paedophilia don’t walk down the street and sexually abuse every child they see.”

118. In re-examination Professor Greenberg was asked again about the respondent having ADHD:

“Q. Just assuming for a moment that Mr Vanryn has been a successful businessman over some decades?

A. Right.

Q. Is that a factor, if you accept that to be the case for argument sake, is that a factor you would take into account in determining whether he has deficits in executive functioning?

A. Yes, the issue of so called high functioning, it’s a question, it’s a spectrum, so he has lesser symptoms than a person with full-blown ADHD who has a diagnosis consistent with DSM-5. So the effect of having a much lesser or milder form of ADHD, how that would impact on all areas, it wouldn’t be specifically to one area, one would expect it to be, impact on all areas of functioning where he had deficits.”

Oral evidence of Dr Rowe

119. Dr Rowe was also called to give evidence. He said in chief that he had recently conducted a Static Test (“2002 R”). The result was that the respondent was assessed as posing a “low to moderate” risk of re-offending. In cross-examination he said he had not previously conducted that particular test because he had not been aware of such tests.

120. Dr Rowe disagreed with Professor Greenberg on the ADHD issue. It was his view that “ADHD doesn’t generalise across all behaviours and activities”.

Victim Impact Statements

121. A number of victim impact statements were tendered and they indicated a range of emotional and psychological harm that the offences had caused. Perhaps unsurprisingly, victims spoke of feeling anger, betrayal, mistrusting others, personal guilt, and concerns about personal relationships. Two of the victims (Victim 1 and Victim 2) also spoke of having engaged in self-harming behaviours as part of their reaction to what occurred to them.

The sentencing judgment

122. In view of the widespread attack made by the Crown in relation to the sentencing judgment it is appropriate to summarise it in some detail. It comprised the following components:

A verbatim recitation of the terms of each count in the two indictments. (ROS 1-4)

Reference to the Form 1 offences. (ROS 4-5)

Reference to the applicable maximum penalties and standard non-parole periods for the offences. (ROS 5-6)

A verbatim recitation of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act. (ROS 6)

Quotation from R v Engert (1995) 84 A Crim R 67 at 68 ("the interplay of the considerations relevant to sentencing may be complex"; "erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of a particular factual circumstance"; etcetera).

Quotation from R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unrep) (a paramount objective of sentencing is "the achievement of justice in the individual case").

Citation of five cases in which "those observations have been endorsed".

A statement of reasons for reducing sentences by 25 per cent for the utilitarian benefit flowing from the pleas of guilty. (ROS 7-8)

Reference to the sentence being backdated to 10 December 2014; the date the respondent was refused bail. (ROS 8)

Recitation of the facts for each offence. (ROS 8-18)

A reference to the need for "grooming", as contended by the Crown, to be proved beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 at [27]. (ROS 18)

A reminder of the need to sentence only in relation to the offences charged and not for uncharged offences; although permissible to have regard to offences charged not being isolated incidents. Quotations in this regard from R v Bamford (Court of Criminal Appeal (NSW), 23 July 1991, unrep), R v Dousha [2008] NSWCCA 263 at [27]; and R v Kozakiewicz (Court of Criminal Appeal, 11 June 1991, unrep). (ROS 19)

Quotation of cases in relation to the seriousness of sexual assaults upon children:

R v Fisher (1989) 40 A Crim R 442 at 445: including that "This Court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children that heavy custodial sentences are essential".

R v Skinner (1993) 72 A Crim R 151 at [154]: "general deterrence is of great importance".

R v JCW (2000) 112 A Crim R 466 at [121]: "In circumstances where grave and repeated sexual assaults were perpetrated upon a young child, in particular by a person in a position of trust and authority, condign punishment is called for".

R v BJW (2000) 112 A Crim R 1 at [20]: "community abhorrence of and concern about adult sexual abuse of children".

R v Burchell (1987) 34 A Crim R 148 at 150: the need for severe punishment; the "element of general deterrence is of prime importance".

Corby v R [2010] NSWCCA 146 at [71]: the need to have regard to standard non-parole periods prescribed for aggravated indecent assault.

GAT v R [2007] NSWCCA 208 at [22]: the actual character of the indecent assault is of considerable significance in assessing objective seriousness of such an offence.

R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [24]: enforced fellatio is not necessarily below the mid-point of objective seriousness for an offence of having sexual intercourse with a child.

R v Russell (Court of Criminal Appeal (NSW), 21 September 1996, unrep): anal intercourse is always degrading.

Langbein v R [2008] NSWCCA 38; 181 A Crim R 378: persistent sexual abuse of a child (s 66EA) is a more serious offence than the offences which comprise the individual acts.

R v Fitzgerald [2004] NSWCCA 5; 59 NSWLR 493 at [13]: sentencing for a s 66EA offence "should [not] be more harsh in outcome than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences".

R v Manners [2004] NSWCCA 181: an offence against s 66EA can involve a wide range of seriousness of conduct. (ROS 19-25)

The victim impact statements are taken into account by recognising the harm done to the victims and the community pursuant to s 3A of the Crimes (Sentencing Procedure) Act. (ROS 25)

A breach of trust, in that the majority of the offences occurred when the victims were guests in the respondent's home, is an aggravating factor. (ROS 25-26)

Rejection of a Crown submission that it was an aggravating factor that the offence taken into account in relation to count 7 was committed whilst the respondent was on bail. (ROS 26)

Summary of some aspects of the respondent's personal circumstances including his tertiary education and "extremely good work history". (ROS 26)

Summary of the circumstances of the 1981 offence of indecent exposure; holding that this disentitled him to be considered as a first offender "to a very minor extent". (ROS 27)

Good character, although given significantly less weight than in sentencing for other offences, was still necessary to be taken into account. (ROS 27-28)

Contrition was evident from the respondent's early admission of wrongdoing, immediate recourse to psychiatric treatment and taking steps to address offending by involvement in anti-libidinal treatment. It was also evident from his wife's statement and the report of Dr O'Dea. The judge rejected the Crown's submission that contrition was not evident from the respondent's oral evidence. The respondent "has shown deep contrition". (ROS 28-29)

"On limited occasions, sporadically, the offender offended in relation to a number of the children". The judge was unable to say that the respondent's denial of "grooming" was untruthful. He was also not satisfied beyond reasonable doubt that grooming was involved and that sexual activity with Victim 2 was intended in relation to the trip to Canberra. (ROS 29-30)

The judge considered it important to take into account that the respondent was previously unaware of the availability of anti-libidinal treatment. (ROS 29)

Discussion of the diagnoses of the psychiatrists with quotations from their reports. (ROS 31-33)

Quotations from the respondent's evidence about his good progress in relation to anti-libidinal medication. The respondent has "reasonable prospects of not offending whilst ever he is on that treatment". (ROS 34-35)

Reference to the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 at [177]-[178] for principles relating to sentencing an offender with a mental health condition. (ROS 35-36)

Discussion of the diagnosis of Dr Rowe, in particular of the respondent having ADHD. Dr Rowe had the advantage of examining the respondent, conducting tests and reviewing school and other reports. Professor Greenberg did not have such advantage. The judge was satisfied that the respondent suffered from ADHD and said he would take it into account as well as what Dr Rowe said about it impacting upon the respondent's inhibitions. (ROS 36-37)

In accordance with Pearce v The Queen [1998] HCA 57; 194 CLR 610 there was a need to structure sentences so as to reflect the totality of criminality. (ROS 37)

There was also a need to take into account that a number of the offences under s 61M(1) and s 61M(2) could have been disposed of in the Local Court. (ROS 37-38)

Reference to statements of principle about concurrency and accumulation of sentences for sexual assault offences committed against multiple victims: R v Wicks [2005] NSWCCA 409 at [49] and R v Katon [2008] NSWCCA 228 at [41] were cited. (ROS 38)

Extra curial punishment as described in the respondent's wife's statement and in his oral evidence should be taken into account. Mokhaiber v R [2011] NSWCCA 10 at [31] and R v El Hani [2004] NSWCCA 162 were cited. (ROS 38-39; 40-41)

Reference was made to R v Clinton [2009] NSWCCA 276 at [24] and JM v R [2014] NSWCCA 297 at [71] on the subject of protective custody. A submission that protective custody and prison overcrowding should be taken into account was rejected. (ROS 39-40)

Special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act were found on the bases that the respondent had not previously served a term of imprisonment; he would need a longer period of support in relation to his mental problems when he re-enters the community; and that it was in the interests of the community that he have a long period of parole because of the likelihood of treatment being successful. The judge "referred" to R v Carter [2003] NSWCCA 243; R v Tuuta [2014] NSWCCA 40; Sayed v The Queen [2012] WASC 17; and R v Moore [2015] SASCA 9 (without saying what he derived from any of them). (ROS 41).

The judge concluded by announcing the indicative sentences for each offence and then the aggregate sentence.

123. A prominent feature of the sentencing judgment is the fact that it comprises many statements of general principles but very little reasoning is exposed. It is one thing to state a principle; more important is some explanation of how it is being applied. This will be a recurring theme when I come to deal with the specific errors for which the Crown contends.

Principles applicable to a Crown appeal against sentence

124. In R v JP [2015] NSWCCA 267, Hoeben CJ at CL conveniently provided the following statement of principles applicable to a Crown appeal against sentence brought pursuant to s 5D(1) of the Criminal Appeal Act:

“[43] A claim of manifest inadequacy requires the party advancing that complaint to establish that the sentences imposed were unreasonable or plainly unjust. In a sentencing environment where there is no single “correct” sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach (R v Dinsdale [2000] HCA 54; 202 CLR 321 at 325; Markarian v R [2005] HCA 25; 228 CLR 357 at [25]); Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at 538 [58]).

[44] The High Court has stated on a number of occasions that the primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons and that the court in the exercise of its jurisdiction under s 5D Criminal Appeal Act 1912 retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 at [1]”.

125. It should also be noted that in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [69] the plurality also stated that epithets such as "gross" or "an affront to the administration of justice" are "indicative of a qualitative judgment that the inadequacy of the sentences imposed is so marked that the need for its correction to maintain public confidence in the criminal justice system outweighs other considerations, including any resulting disparity with unchallenged sentences against a co-offender".

126. Even if appellable error is established, it remains for the appellant to persuade the Court to vary the sentence imposed by the court of trial: CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308 at [6] (French CJ and Gageler J); [56]-[66] (Kiefel, Bell and Keane JJ).

Grounds of Appeal

127. The Crown raised the following grounds of appeal:

1   The sentencing judge erred in failing to assess the objective seriousness of the offences.

2   The sentence imposed is manifestly inadequate.

Ground 1 – failure to assess objective seriousness

Submissions

128. As can be seen from the summary of the sentencing judgment set out above, nowhere was any indication given by the judge as to the view he formed as to the seriousness of the offences.

129. Counsel for the respondent submitted that making an assessment of the objective seriousness of the offences is such a basic aspect of the sentencing task that it is "implausible that this experienced sentencing judge failed to perform" it. The task was likened to processes such as engaging in an intuitive synthesis of all relevant facts; something judges do all the time without being expected to state that they have adhered to the requirement. The problem with this argument is that making and stating an assessment of objective seriousness is not a process; it is an essential task required by authority.

130. Authorities were cited for the proposition that post-Muldrock (Muldrock v The Queen [2011] HCA 39; 244 CLR 120) a judge is not required to specify where on a scale of objective seriousness an offence falls: Badans v R [2012] NSWCCA 97 at [55] (in relation to offences carrying a standard non-parole period) and Belghar v R [2013] NSWCCA 245 at [58]-[60]. However, the Crown's complaint is not that the judge failed to specify objective seriousness on a scale; it is that he failed to make, or state, any assessment at all.

131. The written submissions set out a list of "numerous indications" in the sentencing judgment that the judge did make an assessment of objective seriousness. The majority of the items listed are simply references to statements made by the judge of general propositions. The judge only stated two findings he had made concerning the seriousness of the offences: rejection of the Crown’s contention that there had been “grooming” and acceptance that the offences were aggravated by there having been a breach of trust.

132. In oral submissions, Mr Odgers SC contended that the judge was not required to resolve disputes between the parties as to the level of objective seriousness of the offences; an assessment could be made as to what he thought about their seriousness by looking at the sentences imposed. However, it was also accepted that the judgment "wasn't as transparent as it should have been and the reasons are not as well articulated as they should have been". Nevertheless, the primary submission was that the ultimate issue was whether the sentence was manifestly inadequate and that any inadequacy of reasons was not determinative.

Conclusion

133. In the summary of the sentencing judgment set out above it is clear that apart from reciting the facts of the offences the judge made no assessment of their objective seriousness or, if he did, he said nothing about it. Latham J observed in R v Cage [2006] NSWCCA 304 at [17] that:

"A bare recitation of the facts constituting the offences and a reference to the 'objective features of the offences' does not satisfy the requirements of sentencing."

134. In R v Campbell [2014] NSWCCA 102 at [27] Simpson J (as her Honour then was) (with whom Hall J agreed) stated:

“In my opinion, the assessment of objective seriousness is, and has always been, a critical component of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [71]-[72]. These cases were all decided before judgment was given in Muldrock v The Queen [2011] HCA 39; 240 CLR 120. There is nothing in that judgment that cuts across the principle stated. Muldrock exposed error in this Court in over emphasising the assessment of objective gravity in offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, of notional offences in the mid-range of objective seriousness. It does not preclude proper attention being paid to the objective seriousness of the particular offence under consideration: see, for example, R v Koloamatangi [2011] NSWCCA 288 per Basten JA.”

135. One reason that it is important for there to be some assessment of the seriousness of an offence is because one of the purposes of sentencing is to ensure that the offender is adequately punished for the offence: s 3A(a) Crimes (Sentencing Procedure) Act. Another reason is the requirement that a sentence should not exceed, or be less than, what is proportionate to the gravity of the crime: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15] (Spigelman CJ). Further, it enables use of the legislative guideposts of the maximum penalty and any prescribed standard non-parole period: R v West [2014] NSWCCA 250 at [27] (Adamson J).

136. In Delaney v R; R v Delaney [2013] NSWCCA 150 the Crown raised a ground asserting that the sentencing judge had failed to determine the objective criminality of the offences. Hoeben CJ at CL (with whom the other members of the Court agreed) responded (at [56]):

“While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.”

137. That is not this case. Jeffreys DCJ simply recited the facts by reference to the statement of agreed facts. There were lengthy references to, and quotations from, various authorities on the seriousness of sexual assault offences committed against children. It is one thing to refer to the general proposition that child sexual assault is a serious crime; it is another to identify the relative seriousness of the case at hand.

138. Both parties made submissions to the judge about the objective seriousness of the individual offences. For example, in written submissions, counsel for the respondent urged a finding that most of the offences were serious but below the middle of the range. A concession was made that the offence against s 66EA of persistent child abuse was above the mid-range but the judge was urged to find that it was not at or near the top of the range. In the main, the Crown's submissions were that the offences were at or above mid-range, although it was conceded that the offence in count 9 was below that level. The judge did not engage with these submissions at all.

139. The only way of discerning what his Honour thought of the objective seriousness of the individual offences is by drawing an inference from the indicative sentences he specified. For example, he clearly regarded the aggravated indecent assault offences in count 7 of the first indictment (indicative sentence 3 years) and count 2 in the second indictment (indicative sentence 2 years 6 months) as more serious than all of the other aggravated indecent assault offences (indicative sentences of 12 months). But this is as far as one can go in inferring what his Honour thought about the objective seriousness of offences.

229. In R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46], the Court (McClellan CJ at CL, Hulme and Hislop JJ) emphasised the need to maintain public confidence in the administration of justice when sentencing for multiple offences by endorsing the remarks of Sully J in the two-judge bench decision in R v Wheeler [2000] NSWCCA 34 at [36]-[37]:

"... (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.

It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour."

230. In R v XX (2009) 195 A Crim R 38 at [52], Hall J set out a number of propositions derived from the case law concerning the discretionary exercise of ordering sentences to be served concurrently or cumulatively in accordance with the principle of totality. They included reference to the following passage in the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41at [27]:

"… [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." (Emphasis added)

231. The Crown contended that the indicative sentences were unduly lenient (which is a matter left for consideration in relation to the overall complaint of manifest inadequacy) but there was also an inadequate notional accumulation of those sentences in arriving at the aggregate sentence.

232. Whilst the Crown accepted that the approach to totality is not strictly mathematical, it sought to illustrate and make good this complaint by reference to the indicative sentences specified in relation to Count 2 on the first indictment and counts 3 and 4 on the second indictment. Count 2 has an indicative sentence of 8 years and each of counts 3 and 4 has an indicative sentence of 4 years. If the sentencing exercise had involved only these offences, an appropriate measure of partial accumulation would have yielded an aggregate term very close to, or the same as, the 13 year aggregate term arrived at by Jeffreys DCJ. This was said to be illustrative of the fact that the aggregate sentence did not reflect the totality of the respondent's criminality as it left largely unpunished the multitude of offences committed in relation to seven other victims.

233. Counsel for the respondent, correctly with respect, pointed out that the Crown's complaint in relation to this asserted error is not specific. It simply raises a question as to whether the aggregate sentence is manifestly inadequate. It was submitted that "the starting point sentence of 17 years imprisonment was appropriate, notwithstanding the seriousness of the offences committed by the respondent".

234. Jeffreys DCJ adverted to the principle of totality (ROS 37.8). The question is whether there was error in the manner in which he exercised his discretion in applying the principle. In these circumstances, it is appropriate to proceed to consider the overarching question, whether the aggregate sentence is manifestly inadequate.

Objective seriousness of the offences

235. Before turning to the critical issue it is necessary to deal with the issue of the objective seriousness of the offences. Generally speaking, it is open to this Court when dealing with a Crown appeal against sentence to make its own assessment of the objective seriousness of the offences: Carroll v The Queen [2009] HCA 13; 254 ALR 379 at [24]. In this particular case it is mandated because of the failure of the primary judge to do so.

236. In relation to each of the offences it is appropriate to take into account that the respondent, knowing of his sexual urges towards children of both sexes, took advantage of the fact that they frequented his home. He conceded in his evidence (somewhat begrudgingly – "what am I going to do, fill in the swimming pool?") that he knew his home was attractive to children with its facilities including a tennis court, swimming pool, spa and computer games. He preyed upon his victims in this context.

Section 66EA – Persistent sexual abuse of a child

237. Section 66EA provides that it is an offence to engage in conduct with a child that constitutes a sexual offence on three or more separate occasions during any period of time. A "sexual offence" includes offences of aggravated indecent assault (s 61M), sexual intercourse with a child aged between 10 and 14 (s 66C(1)) and sexual intercourse with a child aged between 14 and 16 (s 66C(3)). The conduct need not be of the same nature nor constitute the same offence. It is immaterial if some of the offences were committed outside of the State. It is unnecessary for the prosecution to specify or to prove the dates or the exact circumstances of the various occasions on which the conduct constituting sexual offence occurred.

238. The maximum penalty for an offence against s 66EA is imprisonment for 25 years.

239. It has been said that an offence against s 66EA is more serious than the offences which comprise the individual acts: Langbein v R [2008] NSWCCA 38; 181 A Crim R 378 at [115] (McClellan CJ at CL). However, it also has been accepted that there is "nothing … to suggest that the Parliament intended sentencing for a course of conduct that had crystallised into a s 66EA conviction to be more harsh than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences”: R v Fitzgerald [2004] NSWCCA 5; 59 NSWLR 493 at 503 [13]; R v Manners [2004] NSWCCA 181 at [21].

240. The agreed facts for this offence particularised a number of offences of aggravated indecent assault and sexual intercourse committed by the respondent against Victim 2 in the 5-year period from January 2003 to December 2007 when Victim 2 was aged 10 to 14 years' old. They are described above (at [13]-[20]). There were multiple occasions of indecent assaults and a progression to fellatio and anal intercourse. There were four instances of the respondent showing pornography to Victim 2 as a prequel to his sexual acts. The particularised offences (eight offences against s 61M(2) and seven against s 66C (two being attempts)) were not isolated incidents; it was an agreed fact that indecent assaults and oral sex occurred on many other occasions.

241. As noted earlier, the sentencing judge was not satisfied beyond reasonable doubt that there was "grooming" behaviour by the respondent. It was an agreed fact that he befriended Victim 2 and afforded him the opportunity to enjoy the facilities at his home: computer games, the spa and swimming pool. He gave Victim 2 money for performing odd jobs and gave him small gifts, soft drinks and lollies. He took him away to Canberra to watch a rugby game from a corporate box and took him on a trip to gather oysters on the Bega River. This was activity engaged in by a man in his late 40's – early 50's in relation to a boy aged 10 to 14. Even if there might be doubt about whether this was grooming behaviour, it remains a serious aspect of the offending that the respondent engendered a comfortable and generous relationship with the young boy and sexually violated him in that context.

242. Having regard to these features I am satisfied that the concession made by the respondent’s counsel in the District Court and maintained in this Court that the objective seriousness of this offence was above the middle of the range was appropriate. I would consider it to be comfortably above that level but I also accept counsel's submission that it was not "at or near the top of the range".

Section 61M – Aggravated indecent assault

243. The actual character of the assault, including the degree of physical contact involved, is of considerable significance in assessing the objective seriousness of indecent assaults against children: Corby v R [2010] NSWCCA 146 at [72] (Johnson J).

244. As an example of how this Court has regarded the seriousness of an offence against s 61M(2), constituted by an adult touching a child's genitalia, in GSH v R; R v GSH [2009] NSWCCA 214, Latham J observed that "it is difficult to justify a finding below the mid-range for an offence under s 61M(2) constituted by the touching of the genitalia of a nine year old girl". Contrary to the finding of the primary judge, her Honour assessed the offence as "well above the mid-range, although not in the worst category" (at [59]). It involved the offender asking the child, a visitor to his home, to sit on his lap and when she did so he touched her on the outside of her vagina.

245. Other matters bearing upon the assessment may include the age difference between the perpetrator and the child (Corby v R at [77]). The age of the child relative to the range encompassed by the offence is also relevant - "the younger the child the more serious the offence": R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [42] (Latham J); RJA v R at [13] (Spigelman CJ).

246. The aggravated indecent assault offences in the first indictment involved (except in the case of Count 9) skin on skin touching of children's genitalia and/or buttocks. In the context of an offence with an age range up to (but not including) 16, the ages of the children and the activity involved were:

Count 1   Victim 1   Aged 10        Touched girl's buttocks and genitalia

Count 3   Victim 3   Aged 10-11   Touched and held boy's genitals

Count 4   Victim 4   Aged 8-9       Rubbed boy's buttocks

Count 5   Victim 4   Aged 9-10     Touched boy's genitalia

Count 6   Victim 4   Aged 12        Touched boy's genitalia

Count 7   Victim 5   Aged 13        Stroked boy's penis; spoke of fellatio

Count 8   Victim 6   Aged 13        Rubbed boy's penis

Count 9   Victim 7   Aged 13        Touched boy's genitalia

247. Counsel for the respondent submitted that the offences in counts 1, 3, 5, 6, 8 and 9 were "serious but below the middle of the range of objective seriousness". The submissions included that the offences were "opportunistic" and there was no "grooming". The offence in count 4 was said to be of low objective seriousness but the submissions incorrectly describe the offence as involving a "touching" of the child's bottom and do not mention that the child was aged 8-9. The offence in count 10 was submitted to be "below the middle of the range" but no reason was given for why that should be so.

248. I would regard each of the offences as being considerably serious examples of their type and the more so the younger the victim. The offence in count 7 was more serious as well because it involved stroking the boy's penis and speaking of a desire to perform fellatio in the future although I do not accept that it was at a greater level of seriousness that the indicative sentence of 3 years compared to the indicative sentences of 9 or 12 months for the other indecent assault offences would indicate. The offence in count 8 was more serious because it involved more than just touching.

249. The aggravated indecent assault offences in the second indictment occurred in the context of a relationship engendered by the respondent. It was part of the agreed facts that he welcomed the boy to use the facilities at his home and a relationship developed in which Victim 9, who was 15 years' old, looked upon him as a father figure and role model. Count 1 involved the respondent sitting the child on his lap with his erect penis pressing against the child's back. The Form 1 offence in relation to count 1 involved pulling Victim 9’s swimmers down in the spa and rubbing his erect penis against the boy's buttocks whilst groaning. Count 2 involved the respondent masturbating the boy's penis.

250. Counsel for the respondent submitted in the District Court that the objective seriousness of these offences "would not exceed the middle of the range". In this Court it was submitted that the offence in count 1 was "below the middle of the range" and the offence in count 2 was "significantly more serious".

251. Although the victim was at the upper end of the age range for this offence, the activity involved was particularly serious and they were not isolated incidents. In my view, the offence in count 1 was of middle range seriousness and I agree that the offence in count 2 was comparatively worse.

Section 66C(4) – Aggravated sexual intercourse with child aged 14 to 16

252. The nature of the sexual intercourse is very relevant to the assessment of objective seriousness although there is no rigid hierarchy of seriousness of different forms of intercourse: R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at [97]. However in sentencing in sexual assault cases, generally the form of intercourse is not determinative; it is necessary to look at all of the relevant circumstances: Simpson v R [2014] NSWCCA 23 at [30].

253. The maximum penalty for an offence of aggravated sexual intercourse with a child aged 14 to 16 is imprisonment for 12 years. The circumstance of aggravation was that the victim was under the authority of the respondent (the offence occurred in his home).

254. These two offences in counts 3 and 4 of the second indictment concerning Victim 9 occurred in the context of the relationship I have described above and were preceded by indecent assaults "on most occasions" the pair were in the spa together. Counts 3 and 4 comprised acts of fellatio and anal intercourse inflicted during the one incident. The latter lasted some 5 minutes and only stopped when Victim 9 complained of the pain. This was not an isolated incident, it being agreed that oral and anal intercourse occurred on a number of other occasions.

255. Counsel for the respondent submitted in the District Court that "the objective seriousness would not exceed the middle of the range". I agree with the Crown's submission in this Court that the s 66C(4) offences "are very serious examples of their kind".

Section 61O(2) – Act of indecency towards child under age 10

256. To understand the seriousness with which Parliament recognises offences involving acts of indecency it is necessary to look at both s 61N and s 61O.

257. Section 61N provides for act of indecency offences with maximum penalties of 2 years if the victim is under the age of 16 and 1 year 6 months if the victim is of or above that age.

258. Section 61O(1) provides for an aggravated act of indecency offence against a person under the age of 16. The circumstances of aggravation are either that the offender is in the company of another person or persons; the victim is under the authority of the offender; the victim has a serious physical disability; or the victim has a cognitive impairment. The maximum penalty is imprisonment for 5 years. Section 61O(1A) provides for such an offence but in relation to a victim who is of or above the age of 16 and the maximum penalty is 3 years.

259. Section 61O(2) provides for an act of indecency offence with a maximum penalty of 7 years where the victim is under the age of 10. No circumstance of aggravation is required.

260. Section 61O(2A) provides for an aggravated form of the s 61O(2) offence, the aggravation being that the offender knows that the act is being filmed for the purpose of producing child abuse material. The maximum penalty is 10 years.

261. From this review it may be seen that Parliament has regarded an act of indecency offence involving a child under 10 as considerably more serious than offences involving persons of a greater age.

262. The offence involving Victim 8 in count 10 of the first indictment involved the respondent approaching an 8-year old visitor to his home who was playing with toys in an area well away from the adults. He approached her with his penis exposed and put his hands on her arms and pulled them towards him but she pulled away. It may be inferred that she was sufficiently distressed by the experience to make a complaint to her mother on their journey home.

263. Again, this is a particularly serious example of an offence of its type.

Submissions

264. The Crown's submissions in relation to the indicative sentences for each offence included reference to the maximum penalty and, in most cases, the applicable standard non-parole period. These are important guideposts in the assessment of sentence: Muldrock v The Queen at 132 [27].

265. It was submitted by the Crown that almost all of the indicative sentences specified by the primary judge were inadequate having regard to the serious nature of the offending.

266. It was also submitted that there was some inexplicable (that is, unexplained by the judge) disparity in relation to some of the indicative sentences. For example, the sentence for count 7 was three times greater than the sentences for other aggravated indecent assaults in the first indictment. The first count in the second indictment required a very serious indecent assault to be taken into account yet it had an indicative sentence of only 12 months compared to the 2 years 6 months indicated for the second count in that indictment.

267. The Crown also contended that the aggregate sentence failed to reflect the totality of the respondent's criminality to an extent that it was manifestly inadequate and below the range of sentence that could be justly imposed consistently with sentencing standards: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 588 [24]. That criminality included the commission of very serious crimes over a long period of time in circumstances where the respondent constantly found new victims.

268. Reference was made to observations made in this Court as to the profound and long-term deleterious effects that child sexual assault offences have upon victims: R v CMB [2014] NSWCCA 5 at [92]. Reference was also made to SW v R [2013] NSWCCA 255 where Johnson J stated (at [52]):

"Sexual abuse of children of very tender years will inevitably give rise to psychological damage emanating from (at least) the confusion in the young mind of the victim of abuse."

269. Submissions for the respondent emphasised the favourable findings made by the sentencing judge in relation to his subjective case (they are included in the summary of the sentencing judgment above at [122]). It was contended that these findings permitted a degree of leniency.

270. It was submitted that in the light of these findings, "the starting point sentence of 17 years imprisonment was appropriate". I interpolate that the judge did not adopt such a "starting point". He reduced each of the indicative sentences by 25 per cent before then considering what the aggregate term should be having regard to the principle of totality. It would have been erroneous to proceed in the reverse fashion so as to arrive at an aggregate term and then apply the discount for the pleas of guilty: SHR v R [2014] NSWCCA 94 at [35]-[43].

269. The submissions also cited authorities in which there is a discussion of "individualised justice", "the application of a degree of mercy", and "leniency [being extended] to encourage reform". For example, in Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483 at 494 [27] the High Court said:

"[T]he factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion."

272. It is important, in my view, to note that the Court immediately went on to speak of the need for judges to "act in accordance with statutory and any applicable common law principles and in a manner that is consonant with reasonable consistency" and referred to a statement by Gleeson CJ in Wong v The Queen [2001] HCA 64; 207 CLR 584 at 591 [6] that included:

"The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case."

273. In oral submissions it was accepted that the sentence appeared on its face to be a relatively lenient one. However, it was contended that various subjective factors rendered this case "very different from almost all other cases involving the sentencing of persons guilty of child sexual assault offences". For this reason, so-called comparable cases were not comparable at all. Moreover, it was submitted that this was a case in which there was justification for giving less weight to general and specific deterrence and the protection of the community and more weight to rehabilitation.

274. Counsel referred to certain statements made by McHugh J in Ryan v The Queen [2001] HCA 21; 206 CLR 267 in relation to the sentencing of paedophiles. His Honour only engaged with the issue because of certain statements made by Kirby and Callinan JJ in their judgments. It is important to note that in concluding his judgment, McHugh J said (at 285 [56]):

"Nothing I have said about sentencing paedophiles or the weight to be given to the publicity and opprobrium accompanying conviction is intended to or could be definitive. Nor are my remarks intended to be an exhaustive discussion of these issues. And, since they were not made in deciding a litigated issue, they are not binding on any judge or magistrate."

Determination

275. The Crown devoted effort to submissions as to the asserted inadequacy of indicative sentences. Of course, the appeal is primarily concerned with the aggregate sentence. In JM v R [2014] NSWCCA 297 I discussed the relevance of indicative sentences in an appeal that is concerned with an aggregate sentence. The following propositions (at [40]) are presently relevant:

11. The indicative sentences recorded in accordance with s 53A(2) [of the Crimes (Sentencing Procedure) Act] are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence.

12. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive.

13. A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved." (Citation of authorities omitted)

276. The submissions for the respondent about this case justifying less weight being given to general and specific deterrence and the protection of the community and more weight to rehabilitation is problematic in that it remains unknown whether that was an approach taken by the primary judge. His Honour quoted such matters as being part of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act but said nothing about how significant he found any of them.

277. A summary of "comparative cases" was annexed to the written submissions for the Crown. Counsel for the respondent replied by providing written "Notes on Appellant's Summary of Cases". Neither party made any submissions about any of the cases except that for the respondent it was submitted that this case was unique and so no case was comparable. In the result, there was no suggestion on behalf of either party that there was a range of comparable sentences that would bear upon the assessment of sentence in this case. In those circumstances, the assessment should be based upon general sentencing principles with regard to the guideposts of the maximum penalties and standard non-parole periods provided by Parliament.

278. Counsel accepted in oral submissions that there were flaws in the sentencing judgment such that it came down to this Court making its own determination of what the sentence should be and then comparing that with what was imposed. The question was said to be: "is the difference so great that no reasonable judge sitting at first instance could properly, in accordance with all the relevant principles, even though he hasn't articulated everything, come to the conclusion that he did?" In my assessment, the answer to that question is in the affirmative.

279. I have come to the view that both the aggregate sentence of 13 years as well as the non-parole period of 7 years are manifestly inadequate in the sense that they are unreasonably and plainly unjust. A significantly higher assessment was required in order for there to be a sentence that was proportionate to the objective gravity of the offences. The sentence imposed completely fails the first purpose of sentencing (s 3A(a) of the Crimes (Sentencing Procedure) Act), namely to ensure the respondent is adequately punished for his predatory sexual abuse of 9 children in a period exceeding 10 years. It also fails to sufficiently denounce his conduct and to recognise the considerable harm he has caused (s 3A(f) and (g)).

280. True it is that there were a number of significant matters in the respondent's subjective case that called for not inconsiderable mitigation. But giving due recognition to those matters cannot be allowed to prevail over the well-established sentencing principle described by Spigelman CJ in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15]:

"It is authoritatively established that the common law principle of proportionality, propounded in Veen No 2, requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances. (Hoare v The Queen (1989) 167 CLR 348 at 354.) In a line of cases, commencing with R v Dodd (1991) 57 A Crim R 349 at 354, referred to and affirmed by a five judge bench in R v Whyte (2002) 55 NSWLR 252 at [156]-[158], the proportionality principle is also held to apply so that a sentence should not be less than the objective gravity of the offence requires."

Residual discretion

281. The Crown (which bears the onus on this issue) submitted that there was no specific matter (e.g. delay, progress towards rehabilitation) that would militate against intervention. Counsel for the respondent did not contend otherwise. The Crown also submitted that the interests of justice called for the imposition of an appropriate sentence, particularly having regard to the offences having been committed against multiple victims: R v Gommeson [2014] NSWCCA 159 at [124].

282. Counsel for the respondent submitted, by reference to R v MF [2015] NSWCCA 283, that even if this Court were to conclude that the sentence was manifestly inadequate it was "not so lenient as to constitute an affront to justice such that intervention is necessary". That quotation was taken from the judgment of Bathurst CJ at [4]. It was immediately preceded by his Honour saying that the sentence in question might be considered "somewhat lenient". (R v MF was a case in which the sentence was not found to be manifestly inadequate.)

283. In my view, the sentence imposed by Jeffreys DCJ is such an affront to the administration of justice that interference is justified in order to maintain adequate standards of punishment for offences of this kind.

Exercise of the sentencing discretion afresh

284. I have previously indicated my view as to the seriousness of the offences (see above at [237]-[263]).

285. A number of subjective mitigating factors legitimately identified by the primary judge should be brought to bear on the assessment of sentence. In this regard I have in mind the 25 per cent reduction of sentence for each individual offence on account of the respondent's early pleas of guilty. I also have in mind his otherwise prior good character (I agree that the 1981 indecent exposure offence is too removed in time to have significance). His charitable and other community engagements are significant matters.

286. No submissions were made as to whether or not s 21A(5A) of the Crimes (Sentencing Procedure) Act, which prohibits good character and a lack of previous convictions being taken into account in child sexual assault cases, should apply. It applies if either of those factors was of assistance to the offender in committing the offences. Arguably it does apply but the situation is not entirely clear and in the absence of the Crown raising it I would not apply it. I bear in mind, however, that good character is of less significance in cases such as this involving repeated sexual offending against children over a lengthy period of time: see, for example, PGM v R [2008] NSWCCA 172; 187 A Crim R 152 at [43]-[44]; Dousha v R [2008] NSWCCA 263 at [49].

287. I am prepared to accept that, to a degree, the respondent is remorseful. His early guilty pleas, entered before a brief of evidence was compiled and served and his prompt seeking out of psychiatric treatment for his paedophilic condition are significant matters. The manner in which he gave evidence in the sentence proceedings (arrogance and belligerence is apparent even from the transcript e.g. “What am I going to do, fill in the swimming pool?”), and the acceptance by his counsel in this Court that he sought to understate the seriousness of some of his offences, points in the opposite direction.

288. The finding by the primary judge that there are "reasonable" prospects of rehabilitation should be maintained. The qualifier to this is, as his Honour stated, "whilst ever he is on that treatment". (It was common ground that the respondent had continued treatment whilst in prison.)

289. I am not prepared to accept that the condition of ADHD (assuming the respondent has it) reduces his moral culpability for the offences or justifies any reduction in the weight to be given to general deterrence. He is a very intelligent man who was a highly successful businessman. He acknowledged in his evidence that he knew what he was doing was wrong and against the law. Yet he repeatedly offended against different children for years. If his offending was at all impulsive, which I doubt, he continually allowed himself to be presented with opportunities, and on many occasions sought out opportunities, to offend.

290. The difficulties the respondent's wife has experienced and his anxiety in relation to it should be taken into account.

291. I am not prepared to find that there are special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole period. There is a significant purpose in the respondent being supervised in the community when released on parole and that is to ensure that he maintains treatment directed to minimising the risk of further offending. However, the potential period of parole incorporated by a sentence that is framed in the usual statutory proportions will be more than adequate for that purpose. Mr Van Ryn is a mature and intelligent man who claims to understand the link between him maintaining treatment and reduction of his risk of reoffending. He should not need to have a parole officer looking over his shoulder for a greater period of time to ensure he is doing what needs to be done.

Indicative sentences

292. Pursuant to s 53A(2)(b), I propose the following sentences as those that would have been imposed if the Court did not proceed to impose an aggregate sentence. Each has been reduced by 25 per cent (with some rounding for practical purposes) on account of the utilitarian value of the early pleas of guilty. Additional offences have been taken into account in relation counts 4 and 7 on the first indictment and count 1 on the second indictment.

Count	Offence	Sentence	Non-parole period (where SNPP prescribed)
1st Indictment
1	s 61M(1)	1 year 10 months	1 year 5 months
2	s 66EA	10 years 6 months
3	s 61M(2)	2 years 3 months	1 year 8 months
4 (Form 1)	s 61M(2)	3 years	2 years 3 months
5	s 61M(2)	2 years 3 months	1 year 8 months
6	s 61M(2)	2 years 2 months	1 year 7 months
7 (Form 1)	s 61M(2)	3 years	2 years 3 months
8	s 61M(2)	2 years 3 months	1 year 8 months
9	s 61M(2)	2 years 2 months	1 year 7 months
10	s 61O(2)	1 year 10 months	1 year 5 months
2nd Indictment
1 (Form 1)	s 61M(2)	3 years	2 years 3 months
2	s 61M(2)	3 years	2 years 3 months
3	s 66C(4)	4 years 6 months
4	s 66C(4)	5 years 3 months

Orders

293. I propose the following orders:

1   Crown appeal allowed.

2   Sentence imposed in the District Court on 9 September 2015 quashed.

3   Sentenced to an aggregate term of imprisonment of 18 years with a non-parole period of 13 years 6 months. The sentence will date from 10 December 2014. The offender will become eligible for release on parole at the end of the non-parole period which will expire on 9 June 2028. The total term will expire on 9 December 2032.

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Amendments

20 June 2016 - [31] Maximum penalty corrected

11 February 2016 - [89]; [113] typo

10 February 2016 - [293] typo in order 2

Decision last updated: 20 June 2016