R v Wright

[2020] NSWDC 411

District Court

New South Wales

Medium Neutral Citation:

R v Wright [2020] NSWDC 411

Hearing dates:

9 March 2020

Date of orders:

7 May 2020

Decision date:

07 May 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Offender sentenced to aggregate term of 4 years and 8 months imprisonment with a non-parole period of 3 years.

Catchwords:

CRIME — Sexual offences — Act of indecency

Legislation Cited:

Crimes Act 1900 (NSW), ss 81, 78K

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA, 3A

Cases Cited:

R v Egan [2016] NSWLR 285

R v Catell [2019] NSWCCA 297

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Donald Stanley Wright (Offender)

Representation:

Counsel:
Mr D Robinson (Crown)
Mr E Kerkyasharian (Offender)

Solicitors:
Mr C Watson (Offender)

File Number(s):

2016/385148

Publication restriction:

There is to be no publication of any material that identifies or is likely to lead to the identification of the complainants.

SENTENCE

Introduction

1. The offender stands to be sentenced, having pleaded guilty to an indictment containing the following three offences. That between 1 June 1971 and 31 July 1971 at Brooklyn, he assaulted a male, namely, LW, now known as LH and committed an act of indecency on him. That is an offence under s 81 of the Crimes Act and has a maximum penalty of five years imprisonment.

2. The second offence is an offence that between 1 January 1990 and 31 December 1990, he had sexual intercourse with LT, a male person above the age of ten years and under the age of eighteen years, namely thirteen years. That is an offence under s 78K of the Crimes Act and has a maximum penalty of ten years imprisonment.

3. The third offence is an offence that between 10 December 1992 and 31 January 1993 at Kingswood he had sexual intercourse with PT, a male person above the age ten years and under the age of eighteen years, namely, thirteen years. That too is an offence under s 78K of the Crimes Act and has the same maximum penalty as the offence in Count 2. None of the offences are subject to a standard non-parole period.

4. There are three Form 1s. When sentencing the offender on Count 1 he acknowledges his guilty in relation to two further indecent assault offences in relation to LH and asks that I take them into account.

5. When sentencing the offender on Count 2 he acknowledges his guilt in relation to an offence of committing an act of gross indecency with LT who at that time was a male under eighteen years of age, namely, thirteen years. He asks that I take that offence into account when I sentence him on Count 2.

6. When sentencing the offender on Count 3 he acknowledges his guilt in relation to an offence of committing an act of indecency towards PT, a person under the age of sixteen years, namely fourteen years. He asks that I take that offence into account when I sentence him on Count 3.

The Facts

7. I turn to the Facts. The Facts are agreed and the following is taken from the Agreed Facts. LH was born on 25 August 1964 in Queensland. His parents divorced in about 1966 and his mother moved him and his five siblings to his maternal grandmother’s house in Sydney. Shortly after a report was made to the Child Welfare Department about the family’s living arrangements, and the offender was appointed as the Welfare Officer to the family. Between 1 June 1971 and 31 July 1971 the offender took LH on a fishing trip to the Hawkesbury River for a few nights. They stayed in a particular boatshed referred to in the Facts. On the first night LH was woken by the offender reaching under his blankets and rubbing his penis. As it was winter LH felt the offender’s hand was very cold. He felt scared and lay still and pretending to be asleep. That is the first offence on the Form 1 concerning Count 1. The offender grabbed LH’s hand and used it to move up and down on his own erect penis and that is the second offence on the Form 1. The offender also put his penis in LH’s mouth and told him to “suck on it like an iceblock.” They are the Facts for Count 1 on the indictment.

8. In terms of the offence concerning LT, the offender was employed by Penrith City Council and worked at its archive building located on Cox Avenue, at Kingswood. LT began Year 7 at Kingswood High School in 1989. He caught a train from Werrington train station to Kingswood train station each day to get to school. In 1990, when he was in Year 8 LT met the offender on the train. Shortly after meeting the offender he gave LT a card with a $5 note inside. Some time after receiving the card LT began sitting on the train with the offender and talking to him. The offender invited LT to the archives where he worked. LT would visit the offender after school and on the weekend. Down the bottom of the building there were a couple of desks that were back to back to each other. The desks had drawers and there were pornographic magazines in the drawers and the drawers near the sink. In 1990, when LT was thirteen years of age he was alone at the archives with the offender looking at pornographic magazines. The offender was sitting at a desk about three metres away from him. The offender was talking to him about erections so he pulled out his penis and said, “Look at this.”. The offender said, “Nice penis.”, walked over to him and touched his penis. The offender then placed his mouth on LT’s penis and began performing fellatio upon him. The offender performed fellatio on LT until he ejaculated into his mouth. Those Facts support both the count on the indictment, Count 2, concerning LT and the offence on the Form 1.

9. In terms of the offence concerning PT. PT grew up in the Penrith area. He had three older brothers and attended high school at St Dominic’s College at Kingswood. In 1990 the older brother DT was in Year 10 at that school. He worked for the offender before and after school at the old Penrith City Council archives. At the time PT was ten years of age and in Year 5 at Leumeah Public School. He first met the offender in 1990 when he attended PT’s family house with an old computer and two yellow swivel chairs for his brother DT. The offender arrived in a Council Toyota white van with DT and his pushbike in the van. When PT began high school his brother DT told him to go and see the offender at the Penrith Council archives to do some work for him.

10. One morning in 1992 PT approached the offender on Cox Avenue, when he was twelve years old, and introduced himself. They walked together to the archives building and the offender took him into the main building. The offender introduced PT to pornographic magazines which he stored in the bottom drawer of one of the desks. In the school holidays of 1992 to 1993 PT turned thirteen and the offender asked him to work for him in archives. During lunch breaks PT would look at the pornographic magazines and the offender would often ask him if he got a “boner” looking at the magazines. PT would tell him he did.

11. One afternoon the offender told PT to go in to the demountable on the side of the main archive building. He told PT he would “suck his nob”. PT did not question the offender about this, he just went to the room. PT cannot recall what the offender said, however, he walked into the room, closed the door behind him and told PT to tell him when to stop sucking his “nob”. At this time PT was only thirteen years of age and he said to the offender he only had a small penis. The offender used his mouth and sucked PT’s penis performing fellatio on him. PT did not ejaculate, according to the Agreed Facts, however after a couple of minutes he had a “warm and fuzzy feeling”, through his body and could not take the offender performing fellatio on him any longer, and told him to “stop”. PT told the offender he had had his first orgasm which the offender appeared delighted about.

12. On other occasions PT would look at the pornographic magazines, the offender would turn the lights off and leave the door slightly ajar which let a small amount of light into the room. The offender would then suck PT’s penis performing fellatio on him. This happened over the course of the summer school holidays and continued after the holidays when no-one else was around, mostly in the afternoons. During the school holiday period PT was introduced to LH, when he went to the archives building to see the offender.

13. One afternoon during 1993, PT and another student, named DB were at the archives with the offender. DB asked the offender to show him his penis. The offender pulled his penis out of his pants and masturbated in front of both PT and the other student. The offender ejaculated all over the table in front of both boys. That is the offence on the Form 1 in relation to Count 3.

14. In terms of the disclosure of the offences - on 14 April 2016 PT ran into a former workmate who told him that LH and the offender were embroiled in some Family Court proceedings. That evening PT contacted LH and disclosed to him what the offender had done to him. At about 9 pm that same day LH attended Quakers Hill police station and disclosed the conduct, as well as the conversations with PT. Police contacted PT by phone and he disclosed the offences against him. After taking some details they were told Penrith Detectives would be in contact. On 16 April 2016 both men attended Penrith police station and gave some details to the detectives. They were sent away to write notes and later returned to make statements. In the course of the process PT made reference to LT who police later spoke with.

15. During the thirteenth and 21 December 2016 conversations between the offender and PT and the offender and LH were lawfully recorded. In them the offender expressed to PT that it was a selfish act and whilst at the time he thought that PT had enjoyed it, he was “mature” and he now regretted doing it, and he apologised to LH for what he had done to him for “sexual gratification”. The offender was arrested on 22 December 2016 without incident.

16. There are two Victim Impact Statements before me. One from the victim, LH, previously known as LW, and one from PT. Both set out the adverse impact the offender’s offences have had upon them and their lives and they were considerable.

Objective Seriousness

17. I turn then to my assessment of the objective seriousness of the offences. In terms of the offence in Count 1 concerning LH, the Crown submitted that the aggravating factor of breach of trust under s 21A of the Crimes (Sentencing Procedure) Act was made out. That was not put in dispute by counsel for the offender and I find that aggravating factor established beyond reasonable doubt and have had regard to it in my assessment of the objective seriousness of that offence. Clearly the offender grossly abused his position of trust, given he was a Welfare Officer appointed to the victim’s family. The offender who was supposed to be concerned with the welfare of the victim yet perpetrated a sexual offence upon him.

18. The victim, LH was born on 25 August 1964 so he was a little under seven years of age at the time of the offence. He was a very young boy and the offender was a twenty-nine year old man. The offence was one of the victim being required to put the offender’s penis in his mouth and told to “suck on it”. The offence would appear to be of relatively short duration although when it comes to sexual offending against a young child the fact that an offence is of short duration is not necessarily a mitigating factor, see R v Egan [2016] NSWLR 285. I note there is no suggestion the offender ejaculated. Clearly the offence contained in Count 1 is a serious offence against a very young boy. Although not strictly necessary to compare the offence against a notional mid-range offence, I assess the level of objective seriousness of this offence as being a little below the mid range of objective seriousness for such an offence.

19. The conduct of the offender immediately before the offence which supports the offending on the relevant Form 1, led into the offences on the indictment. That conduct being separately charged has some limited impact on the sentence to be imposed on Count 1, although I note that it occurred during the incident that gives rise to that count.

20. The offence containing Count 2 concerning LT occurred at a time when LT was a young adolescent, aged thirteen years, and the offender was approximately forty-nine years of age. There was a very significant age difference between the offender and the victim and the victim was a long way short of eighteen years of age. The offender had clearly groomed the victim, meeting him on a train; giving him a card with money; inviting him to his place of work; meeting him after work hours and ultimately providing him with pornographic magazines, on the day of the offence. There was obviously some planning in the commission of the offence although not to a level that makes it an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act.

21. The offence is a very brazen one given that it occurred at the offender’s place of employment. The offence involved the offender fellating the victim until the victim ejaculated. I do not consider that the fact that the adolescent boy, on the Agreed Facts, pulled out his penis in some way mitigates the abuse of the victim by the offender. He was clearly given access to the pornography in order to obtain a sexual response from him. This was a serious offence committed by a mature aged male upon a young adolescent boy. I consider this offence to fall within the lower end of the mid-range of objective seriousness for such offending. Given the nature of the offence on the relevant Form 1, being a touching of the boy’s penis, immediately before the act of fellatio, I do not consider that offence has a significant impact upon the sentence to be imposed on Count 1.

22. In terms of the offence in Count 3, again there was grooming of the victim by the offender, he having met him when he was ten years of age, having befriended the boy’s family. The offence occurred when the victim, PT, was a young adolescent boy, only thirteen years of age, a long way short of eighteen, and the offender was a mature man in his early fifties. Again, the offender used pornographic magazines as a means of luring the boy into sexual activity with him and there was some planning in the commission of the offence. This offence was also brazen given that it occurred at the offender’s place of employment. The offender fellated the victim and although the Facts say that the victim did not ejaculate, the Facts record the victim stating that he, “Had a warm and fuzzy feeling through his body”, and that he had told the offender he had experienced his first orgasm. This was, according to the Agreed Facts, not a one-off occasion, and the offender repeatedly over time fellated the victim, although he is not to be sentenced for those other acts.

23. The offence in Count 3 clearly is a serious offence against a young adolescent boy. I consider that it falls within the lower end of the mid-range of objective seriousness for such offending.

24. The offence on the Form 1, applicable to Count 3, occurs on a separate occasion and has some impact upon the sentence to be imposed on that count, given the nature of the offence.

The Offender’s Subjective case

25. I turn then to consider the offender’s subjective case. The offender’s date of birth is 14 September 1941, so he is currently seventy-eight years of age and will be seventy-nine in a few months; a man of somewhat advanced age. He has one matter on his criminal history and it is a matter of some significance. On 28 March 1972 he was sentenced to two years imprisonment, with a non-parole period of six months, for an offence of indecent assault on a male person. It was accepted at the sentencing hearing that the prior conviction related to an offence involving a minor and at a time when the offender was a Welfare Officer. The Sentencing Assessment Report records that in relation to the victim of that offence, the offender’s contact with him was in the context of his employment as a Welfare Officer. The Sentencing Assessment Report records that he pleaded guilty to that offence, although, during the preparation of that report, he denied performing sexual acts upon that victim. The offender’s prior record disentitles him to leniency here given the similar offence that is on his record.

26. In terms of the offender’s general character there is some evidence before me that he has, over long periods of time, maintained stable employment, and worked hard for a particular union that he had been a part of.

27. There is before me a Sentencing Assessment Report and a psychologist’s report dated 27 April 2020 by Mark Milic, a Clinical and Forensic Psychologist. I have also considered a testimonial of Warner Robson and an affidavit by LH’s wife. The offender did not give evidence on Sentence.

28. The Sentencing Assessment Report records that the offender has been single since 1970. In the 1960s and 1970s he worked as a Welfare Officer for the Department of Community Services. He worked in Local Government dealing with archives from the late 1970s until he retired in 2006. He is currently in receipt of the old age pension. The Sentencing Assessment Report records the offender stating that throughout his life he had been attracted to adolescent boys, girls and adult women. He acknowledged that he had sexual fantasies about children as young as thirteen.

29. The psychologist considered that the offender does not suffer from any mental health condition, and I note there is no assessment in that report of his obvious paedophilic tendency. In terms of his attitude to the offences the Sentencing Assessment Report records that the offender appeared to struggle with articulating his thoughts in relation to his offending behaviour. That report records that he made several contradictory statements ranging from mitigating his responsibility and blaming his victims; accepting responsibility and being remorseful for his actions and categorical denials. He is said to have shown anger towards his victims for the impact of their allegations. He told the author of the Sentencing Assessment Report that he was, however, prepared to engage in sex offender specific treatment.

30. The Sentencing Assessment Report assessed the offender as having a medium risk of re-offending, in part that overall assessment has taken account of the psychological consultation prepared by Andrew Fung of the Penrith office of Community Corrections. That was a consultation known as a Static-99R assessment, which did not involve a face-to-face consultation with the offender. It is also apparent from that document that the documentation that was available to the author of that report did not include the Facts that had been agreed.

31. It is unfortunate, in my opinion, that the psychologist, Mr Milic, made no attempt to explore the offender’s obvious paedophilic tendencies or any assessment as to the risk that the offender would again act upon them. Given the number of offences, and the prior conviction, surprisingly the psychologist states that the offences “appear out of character”. The offender told the psychologist that he has been sexually impotent since his forties and has had prostate removal in 2008. No medical evidence was placed before me in relation to either condition. Ultimately, however, given the offender’s advanced age and the fact that he has not reoffended since 1993, I consider that he is unlikely to reoffend.

Imposition of sentence

32. The plea of guilty was entered on the day the trial was due to commence; the court being part of the way through the hearing of pre-trial legal issues. The pleas did spare the three complainants, and others, from giving evidence which would have been a traumatic experience for the complainants in particular. In the circumstances I propose to allow the offender a 15% discount of his sentence for the utilitarian value of his plea.

32. There is no unequivocal statement of remorse by the offender. I referred earlier to the contradictory statements recorded in the Sentencing Assessment Report to the effect that he at times blamed the victims while he made other statements accepting responsibility and being remorseful; while at times denying the offences. He is not recorded in the psychological report as making any statement consistent with genuine remorse. A plea of guilty can sometimes be evidence of remorse however here I think it was entered out of a recognition of the inevitable convictions for these three offences, given what I perceived was a strong Crown Case having heard a substantial part of the pre-trial argument. I accept that in paragraph twenty-six of the Agreed Facts it is noted that in recorded conversations with PT and LH the offender had offered apologies of sorts to them for his conduct. Overall I consider there is no unequivocal remorse here. The offender appears to blame the victims for the predicament he now finds himself in, being one where he is required to serve a custodial sentence in his late seventies. He clearly has no insight into the long term harm that the sexual abuse of minors can cause.

33. Given my finding that he is unlikely to reoffend I consider he has good prospects for rehabilitation. Given the offender’s advanced age and the fact he has not reoffended since the last in time offence, a period of approximately twenty-seven years, I propose to make a finding of special circumstances. In making that finding I have also had regard to the fact that he will be entering custody during the COVID-19 pandemic. While as far as I am aware none of the New South Wales prison population has been infected with the disease, fortunately, there is no doubt a heightened sense of anxiety for the offender given that he will be entering custody at an advanced age during the pandemic. He is therefore, on the face of it, a vulnerable person should the disease enter the prison population. I note also that it seems for the foreseeable future there are no face-to-face visits to be allowed in prison.

34. I will utilise the aggregate sentencing provisions, if I had not done so, there would have necessarily been a degree of accumulation of the sentences as there are three victims of separate offences. In terms of the principles of totality I have had some regard to the fact that if the circumstances of Count 1 had been disclosed in 1971 then the principles of totality would have applied when sentencing for that offence and the offence that is on his record.

35. There is no issue that the offender is to be sentenced for historical child sexual offences. Therefore s 25AA of the Crimes (Sentencing Procedure) Act applies to the offender’s sentence. Relevantly that provision is in the following terms, subs (1), “A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing not at the time of the offence.”

36. And subs (3), “When sentencing an offender for a child sexual offence a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing, which may include recent psychological research or the common experience of courts.

37. The approach to be adopted to this provision when sentencing was considered by the Court of Criminal Appeal in 2; Price J delivered the judgment of the court.

38. His Honour said that the provision required a sentencing judge to take into account the sentencing pattern which existed at the time of sentencing, where such a pattern is able to be discerned; determine the facts as now available to the court; pay regard to the maximum penalty and standard non-parole period, if any, that applied at the time of the offence; identify where the offence falls in the range of objective gravity of that offence; take into account any relevant aggravating factors and mitigating factors under the Crime (Sentencing Procedure) Act; set a non-parole period in accordance with s 44 of that Act, as it applies at the time of sentence, and set the balance of the term of sentence.”

39. As was acknowledged in Catell at this point in time, not unexpectedly, the Crown is unable to provide statistical material that might support a finding of a pattern of sentencing for such offences. In terms of current sentencing practices which are to be applied to the sentencing of the offender, courts now, because of the frequency with which such cases come before them, are far more aware of the serious, adverse and long-lasting effects of sexual offending upon children. I have had regard to that principle in determining the sentences here. It is the maximum penalties that applied at the time of the offending, that apply to the sentencing of the offender and of course if he was to be sentenced today for the same conduct, having been committed under the current legislative scheme, the maximum penalties applicable would be much greater, however that is irrelevant to the sentence I am to impose.

40. In terms of the issue of delay and the sentencing of the offender, it is well known that complainants in cases of child sexual offending do not come forward, sometimes, for many years due to the trauma and embarrassment associated with revealing such offending. The delay here means that the offender has escaped justice for decades and has enjoyed his life since the mid-seventies, free of punishment for his crimes. I do not see the delay here as in some way mitigating the sentence to be imposed.

41. The Form 1 offences have some impact upon the sentence I would impose on the count to which they relate as I explained earlier. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.

42. Sexual offending against children by adults is abhorrent to all right-thinking members of our community. Regrettably the experience of this court is that offences like those committed by this offender have been, and remain, prevalent in our community. Children must be able to grow into adulthood free of being preyed upon by sexual predators like the offender. The Court must impose a sentence of sufficient severity to act as a deterrent to this offender and others. The only appropriate penalty is one of full-time custody. The maximum penalty has been taken into account as a Legislative guidepost.    

43. Prior to the application of the discount for the plea of guilty the starting point for the indicative sentences are as follows: for Count 1, two years imprisonment. For Count 2, three years imprisonment. For Count 3, three and a half years imprisonment.

44. Mr Wright just stand up please. Mr Wright you are convicted of the three offences to which you have pleaded guilty. I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier. The sentences you will hear me first announce are what are called “indicative sentences”. You will then hear me announce an aggregate sentence which is the sentence and non-parole period that you will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will tell you the date it starts from; the date it ends and the date when you are first eligible for parole. In terms of the indicative sentences,

45. On Count 1 there is an indicative sentence of one year and eight months imprisonment.

46. On Count 2 there is an indicative sentence of two years and six months imprisonment.

47. On Count 3 there is an indicative sentence of two years and eleven months imprisonment.

48. I impose an aggregate sentence of four years and eight months imprisonment with a non-parole period of three years. The sentence commences today, 7 May 2020 and expires on 6 January 2025. The non-parole period expires on 6 May 2023. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 6 May 2023. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether to release you on that day or another date.

Orders

1. In relation to Count 1, taking into account the offences on the Form 1, record an indicative sentence of 1 year and 8 months imprisonment.

2. In relation to Count 2, taking into account the offence on the Form 1 record an indicative sentence of 2 years and 6 months imprisonment.

3. In relation to Count 3, taking into account the offence on the Form 1, record an indicative sentence of 2 years and 11 months imprisonment.

4. Impose an aggregate sentence of 4 years and 8 months imprisonment, with a non-parole period of 3 years.

5. The sentence commences on 7 May 2020 and expires on 6 January 2025. The non-parole period expires on 6 May 2023.

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Decision last updated: 03 August 2020