Stanton v R

[2017] NSWCCA 250

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Stanton v R [2017] NSWCCA 250

Hearing dates:

3 May 2017

Date of orders:

20 October 2017

Decision date:

20 October 2017

Before:

Johnson J at [1];
Adamson J at [159];
Campbell J at [160]

Decision:

Leave to appeal against sentence granted. Appeal dismissed.

Catchwords:

SENTENCING - Appeal against sentence - specific offences - historic child sexual abuse - offences by a religious brother and teacher against three boys (aged between nine and 11 years) during 18-month period in 1980 and 1981 - 12 offences of indecent assault, buggery and attempted buggery, with seven further offences on a Form 1 - severity - whether principle of totality applied - whether any error in imposing indicative sentences - whether aggregate sentence manifestly excessive

 

SENTENCING - Appeal against sentence - specific offences - historic child sexual abuse - whether due regard was had to sentencing practices at the time of the offences

  SENTENCING - Appeal against sentence - remorse, rehabilitation and good character - where limited evidence lead by the offender - whether post-sentence conduct was sufficiently considered by the sentencing judge ­- whether sentencing judge erred in failing to make findings of remorse, rehabilitation or good character in the light of limited evidence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:

Azzopardi v R (2011) 219 A Crim R 369; [2011] VSCA 372
BJS v R (2013) 231 A Crim R 537; [2013] NSWCCA 123
Brown v R [2012] NSWCCA 199
JM v R (2014) 246 A Crim 528; [2014] NSWCCA 297
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 304, 308, 340
Power v The Queen [1974] HCA 26; 131 CLR 623
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v Gommeson (2014) 243 A Crim R 534; [2014] NSWCCA 159
R v MAK (2006) 167 A Crim 159; [2006] NSWCCA 381
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Sullivan v R [2008] NSWCCA 296
Wilson v R [2017] NSWCCA 41
ZA v R [2017] NSWCCA 132
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Texts Cited:

---

Category:

Principal judgment

Parties:

Regina (Respondent)

Representation:

Counsel:
Mr S Odgers SC (Applicant)
Mr SA Hughes (Respondent)

  Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2013/380256; 2013/380325; 2014/151590

Publication restriction:

---

 Decision under appeal 

Court or tribunal:

Parramatta District Court

Jurisdiction:

---

Citation:

---

Date of Decision:

12 February 2016

Before:

His Honour Judge Colefax SC

File Number(s):

2013/380256; 2013/380325; 2014/15159

Judgment

1. JOHNSON J: The Applicant, Michael Stanton, seeks leave to appeal against an aggregate sentence imposed by his Honour Judge Colefax SC at the Parramatta District Court on 12 February 2016 with respect to sexual offences committed against three victims in 1980 and 1981.

2. At the time of the commission of the offences, the Applicant was a religious brother and teacher at a school in western Sydney. The three victims were young boys who were pupils at the school. The Applicant, who now acknowledges he is a paedophile, took advantage of his position of trust in order to sexually abuse the boys on many different occasions over an 18-month period.

3. Shortly prior to his scheduled trial date, the Applicant pleaded guilty on 12 October 2015 to 12 offences committed against the three boys in 1980 and 1981, with a further seven offences to be taken into account on a Form 1 in sentencing for the primary offences.

The Offences, Aggregate Sentence and Indicative Sentence

4. On 12 February 2016, the sentencing Judge imposed an aggregate sentence of imprisonment for 23 years commencing on 1 January 2016 and expiring on 21 December 2038, with a non-parole period of 13 years and nine months expiring on 30 September 2029.

5. Set out below is a table indicating the offences, maximum penalties and indicative sentences nominated as part of the process of fixing an aggregate sentence. The victims are not identified by name or initials to maintain the protection to which each is entitled at law: s.578A Crimes Act 1900; s.15A Children (Criminal Proceedings) Act 1987. Pseudonyms will be used when referring to the victims.

Count	Maximum Penalty	Indicative Sentence
Count 5 - Indecent assault committed against Robert (a pseudonym) between 30 January 1980 and 11 December 1980 contrary to s.81 Crimes Act 1900	Five years’ imprisonment	Four years’ imprisonment (taking into account on a Form 1, two further offences of indecent assault against Robert and an offence of common assault under s.61 Crimes Act 1900 against Robert)
Count 10 - Indecent assault of Robert between 30 January 1980 and 11 December 1980 contrary to s.81 Crimes Act 1900	Five years’ imprisonment	Three years and 10 months’ imprisonment (taking into account on a Form 1, a further offence of indecent assault against Robert)
Count 6 - Attempted buggery upon Robert between 30 January 1980 and 11 December 1980 contrary to s.80 Crimes Act 1900	Five years’ imprisonment	Two years and 11 months’ imprisonment
Count 14 - Buggery upon Robert between 30 January 1980 and 11 December 1980 contrary to s.79 Crimes Act 1900	14 years’ imprisonment	Ten years and seven months’ imprisonment
Count 21 - Indecent assault upon Stephen (a pseudonym) between 30 January 1980 and 11 December 1980 contrary to s.81 Crimes Act 1900	Five years’ imprisonment	Four years’ imprisonment (taking into account on a Form 1 two offences of committing an act of indecency contrary to s.81A Crimes Act 1900 and a further offence of indecent assault against Stephen)
Count 24 - Indecent assault upon Stephen between 30 January 1980 and 11 December 1980 contrary to s.81 Crimes Act 1900	Five years’ imprisonment	Two years and one month imprisonment
Count 26 - Indecent assault upon Stephen between 30 January 1980 and 11 December 1980 contrary to s.81 Crimes Act 1900	Five years’ imprisonment	Three years and 10 months’ imprisonment
Count 27 - Indecent assault against Stephen between 30 January 1980 and 11 December 1980 contrary to s.81 Crimes Act 1900	Five years’ imprisonment	Four years’ imprisonment
Count 30 - Indecent assault upon Stephen between 30 January 1980 and 11 December 1980 contrary to s.81 Crimes Act 1900	Five years’ imprisonment	Four years and three months’ imprisonment (taking into account on a Form 1, a further offence of indecent assault upon Stephen)
Count 29 - Buggery upon Stephen between 30 January 1980 and 11 December 1980 contrary to s.79 Crimes Act 1900	14 years’ imprisonment	Eight years and 11 months’ imprisonment (taking into account on a Form 1, a further offence of indecent assault upon Stephen)
Count 34 - Indecent assault upon David (a pseudonym) between 30 January 1980 and 30 April 1981 contrary to s.81 Crimes act 1900	Five years’ imprisonment	One year and three months’ imprisonment
Count 35A - Indecent assault upon David between 30 January 1980 and 30 April 1981 contrary to s.81 Crimes act 1900	Five years’ imprisonment	Four years’ imprisonment

Grounds of Appeal

6. By Notice of Application for Leave to Appeal filed on 20 February 2017, the Applicant relied upon the following grounds of appeal:

1. Ground 1 - The sentencing Judge erred in determining the utilitarian discount for the pleas of guilty;

2. Ground 2 - The sentencing Judge erred in assessing the prospects of reoffending;

3. Ground 3 - The sentencing Judge erred in failing to find that the Applicant was remorseful;

4. Ground 4 - The sentencing Judge erred in failing to give any mitigating effect to evidence of good character;

5. Ground 5 - The sentencing Judge erred in determining the aggregate sentence; and

6. Ground 6 - The aggregate sentence is manifestly excessive.

Facts of the Offences

7. What follows is drawn from an Agreed Statement of Facts (signed by the Applicant) which was tendered at the sentencing hearing.

8. The Applicant was born in March 1955. In 1980 and 1981, the Applicant was a professed member of the Patrician Brothers Order who taught at St Patrick’s College, Blacktown. He was known as Brother Jeffery. At the time of the offences, the Applicant was about 25 years old.

9. Each of the victims, Robert, Stephen and David was a student at St Patrick’s College in Years 5 or 6 at the time of the offences.

Offences Against Robert

10. Robert commenced to attend St Patrick’s College in 1980 when he was in Year 6. He was 11 years old. The Applicant was one of his teachers.

11. On an occasion in 1980 during a class, the Applicant called Robert up to his desk, telling him he was in trouble for something. The Applicant’s desk sat on a pedestal overlooking the class. The sides of the desk were covered in such a way that it was impossible to see underneath it. When the Applicant was sitting at it, only his head and shoulders were visible.

12. The Applicant told Robert to sit in front of him on his chair. Robert remembers sitting on the edge of the Applicant’s chair between the Applicant’s legs. The Applicant reached around with one of his hands and touched Robert’s penis on the outside of his clothes. As he was touching the boy in this manner, the Applicant said words to him to the following effect, “Do you like it? Are you enjoying it? You know you are in trouble and no one will believe you? I know what school your sister goes to”. When the Applicant removed his hand from the boy’s penis, he put a $2.00 note into Robert’s jacket pocket (Form 1 offence attached to Count 5 – indecent assault).

13. A few days later, Robert again attended a class conducted by the Applicant. When the class ended and the boys started to leave the room, the Applicant told Robert that he had to stay behind. When all the other boys had left, the Applicant walked up behind Robert, reached around with one of his hands and put it down the boy’s pants. He touched Robert directly on the penis and testicles. As the Applicant did this, he pulled Robert closer towards him and the boy could feel the Applicant’s penis pressing against his back. When the Applicant ultimately stopped, he placed a $2.00 note into Robert’s pocket (Form 1 offence attached to Count 5 – indecent assault).

14. A few days later, the Applicant walked up to Robert and ordered him to go down to the tennis courts to pick up cigarette butts. A set of stairs led down to the tennis courts. Anyone at the bottom of those stairs was hidden from view. Robert walked down the stairs to the tennis courts. As he did so, the Applicant grabbed him and pushed him into the wall so that each was facing the other. The Applicant started kissing Robert on the neck and ear. As the Applicant was kissing the boy, he touched Robert’s penis on the outside of his pants. The Applicant then undid the zipper of Robert’s pants and pulled his penis out. The Applicant then put his mouth over Robert’s penis and sucked it (Count 5 - indecent assault).

15. After a while, the Applicant stood up and told Robert to go back to class. He placed a $2.00 note into Robert’s hand. On the way back to class, Robert went to the toilet to wash his penis. This process made it appear as though he had wet himself and, when he returned to class, he was teased by two other students.

16. The Applicant would regularly send Robert to the tennis courts to pick up cigarette butts and would regularly assault him at those courts. Sometimes, Robert refused to go. The first time he refused to go, the Applicant got very angry and screamed and swore at the boy saying words to the effect, “Don’t you ever disobey me again. You do as you are fucking told”. The Applicant then told Robert to hold out his palms and hit him with a strap six times (Form 1 offence attached to Count 5 - common assault).

17. On a day when a sports carnival was held at the school oval, Robert was at the carnival with his friends. He and another boy got into trouble with the Applicant, who sent Robert to the tennis courts to pick up cigarette butts. The other boy was sent in the opposite direction. The Applicant followed Robert down to the tennis courts and followed him down some stairs. When Robert got to the bottom of the stairwell, the Applicant pushed him against the wall so that Robert’s back was facing the Applicant. The Applicant pulled down the boy’s shorts so that Robert’s bottom was exposed. The Applicant said, “I’ll show you,” and pushed his penis onto the checks of Robert’s buttocks. The boy clenched his buttocks together (Count 6 - attempted buggery).

18. As the Applicant was doing this, he was kissing Robert’s neck and breathing heavily into his ear. After a short time, the Applicant ejaculated between Robert’s legs. The Applicant said “good boy,” and walked away.

19. Robert pulled his pants up and went to the toilets in the playground. He took his underpants off and flushed them down the toilet. He then went back to the sports carnival with his jumper tied around his waist because he was no longer wearing underpants.

20. Towards the end of 1980, the Applicant contacted Robert’s parents to see if he wanted to go on a school camp. Robert ultimately went to that camp along with the Applicant and other boys and staff from the school. They went to a retreat house owned by the Patrician Brothers in Narellan. At the camp, the boys slept in beds in a large dormitory. Each bed was separated from others by curtains which created individual rooms.

21. On the first night of the camp, Robert was lying on his bed when the Applicant came into his room. Although it was dark, Robert recognised the Applicant’s silhouette and the smell of his distinctive perfume. Robert was lying on his back. The Applicant bent down and kissed him on the face and ears. He then placed his hand on Robert’s penis and starting masturbating him. He then put his mouth on the boy’s penis and sucked it (Count 10 - indecent assault).

22. After the Applicant had placed his mouth on Robert’s penis, the Applicant stood up and started masturbating himself, ejaculating onto the boy’s face, arms and chest (Form 1 offence attached to Count 10 - indecent assault). The Applicant then walked out of the boy’s room. Robert waited five to 10 minutes and then went to the toilets to clean himself. When he returned to his bed, he swapped the pillows and the blankets with some on another bed. He lay awake in bed for a while crying. When Robert awoke the next day, he found a $2.00 note on his bedside table.

23. The next night, the Applicant came into Robert’s room again. The boy recognised him by his silhouette and smell. The Applicant got into bed with Robert, underneath the covers. He began to kiss Robert’s neck. The Applicant then pulled down Robert’s shorts and underpants and pushed something in between his buttocks. It felt the same as the incident at the tennis courts. As the Applicant pushed against the boy’s buttocks, he reached around and masturbated Robert’s penis. The boy then felt an intense pain in his anus. Robert did not move as the Applicant pushed something in and out of his anus causing enormous pain. The Applicant then made a groaning noise and Robert felt something going inside his bottom (Count 14 - buggery). The Applicant stopped and licked the inside of Robert’s neck before getting out of bed. Robert lay in bed crying. His anus was in so much pain that, when he stood up, he could not walk properly. When he went to the toilet, semen and blood came out of his anus. He tried to wipe his bottom, but it kept bleeding. He was struggling to stand up as he was in so much pain. He stayed in the bathroom for a long time. He washed his underpants before returning to the dormitory as there was blood on them. When he woke the next morning, Robert was still in pain. He noticed that there was a $5.00 note on his bedside table.

24. The next night, Robert was too afraid to go to bed so he crept outside after everyone else had gone to bed. It was raining and cold. He spent the night huddled up under a tree in the rain and returned to the dormitory the next morning.

25. The next time the Applicant tried to send Robert down to the tennis courts, the boy refused. A few days later, when the Applicant told him to stay back after class, Robert said to him “I don’t want you doing this anymore”. A week after that, the Applicant licked Robert’s neck. This was the last time anything happened with Robert.

26. The first person to whom Robert disclosed the abuse was a nun with the Sisters of Charity in 2005. Robert reported the matter to the Church and provided a statement to the Church on 27 April 2006 (to which further reference will be made). Although that statement omitted certain details, it was generally consistent with his statement to the police.

Offences Against Stephen

27. Stephen was in Year 5 in 1980 when he was nine or ten years old. In that year, he was indecently and sexually assaulted by the Applicant. Stephen was a gifted sportsman and was selected to represent the school at an interschool competition. Students selected for that competition had to train every recess and lunch hour. At some point, the Applicant became responsible for supervising that training and that is how Stephen came to meet the Applicant.

28. On one occasion in 1980, towards the end of the recess, Stephen was playing sport when the Applicant asked him to pick up rubbish around the tennis courts. Stephen was by himself. He noticed other boys making their way back to class, but the Applicant continued to stand there watching him pick up rubbish. When Stephen turned around, he saw the Applicant had his penis exposed and was playing with it whilst looking at Stephen (Form 1 offence attached to Count 21 - indecent act with male contrary to s.81A Crimes Act 1900).

29. The Applicant repeated this pattern of behaviour on three or four occasions such that Stephen used to become nervous towards the end of recess and lunch hours in case the Applicant asked him to go and pick up rubbish or tennis balls.

30. On another occasion, towards the end of recess, the Applicant told Stephen to pick up rubbish around the tennis court area. The bell rang and the other boys started returning to class. The Applicant exposed his penis through the zipper of his pants and stroked it. Stephen continued picking up rubbish. The Applicant said, “You do it, you try it”. Stephen removed his penis from his shorts and held it. The Applicant said, “Watch me do it fast”. The Applicant moved his hand up and down his penis and Stephen copied this behaviour. They were facing each other at the time. Stephen felt his penis become firm but he did not know why (Form 1 offence attached to Count 21 - indecent assault).

31. Thereafter, the Applicant did this to Stephen on many occasions. He always did it quickly so that Stephen could get back to class in time. The Applicant would tell Stephen he was “special” and used to say things such as, “Don’t tell any of the other kids, they’ll get jealous”.

32. On one occasion, the Applicant told Stephen to go and pick up tennis balls. When Stephen got back, the Applicant was waiting for him and had his penis out masturbating. The Applicant said words to the effect, “touch my penis”. Stephen obeyed and grabbed the Applicant’s penis with his right hand and pulled it in an up and down motion with the Applicant’s penis being firm (Form 1 offence attached to Count 21 - indecent assault).

33. On another occasion, the Applicant made Stephen masturbate him. On this occasion, the Applicant ejaculated onto the boy’s hands (Count 21 – indecent assault). The Applicant said, “Wash your hands and go to class, don’t tell anybody” and Stephen went to the toilets and washed his hands.

34. On a day towards the end of the school year in 1980, the Applicant touched Stephen’s penis. The Applicant walked over to Stephen and grabbed him in the crotch area, taking hold of his penis on the outside of his clothing. The Applicant told Stephen to undo his zipper and pull out his penis and the boy complied. As Stephen removed his penis from his shorts, the Applicant said, “Play with it”. Stephen started to pull his penis in an up and down motion and, as he did this, the Applicant started stroking the boy’s penis, also pulling it in an up and down motion. The boy’s penis became firm and he felt nervous and scared (Count 24 - indecent assault).

27. The next offence recalled by Stephen also happened at the end of recess when the Applicant told him to go and pick up rubbish from the tennis courts. Stephen was cleaning up the rubbish when the Applicant came down and told him to finish. The boy started following the Applicant up the stairs and out of the tennis courts. When the Applicant got two steps up, he stopped and pulled his pants down. The Applicant was standing in front of Stephen with his back facing Stephen. The Applicant grabbed the boy’s right hand and pulled it from behind in between his legs and onto his penis. He guided Stephen’s hand onto his penis, making him pull up and down on his penis. The Applicant did this for a little while and then grabbed Stephen’s hand from his penis and inserted Stephen’s finger into the Applicant’s anus and moved it in and out of his anus (Count 26 - indecent assault). After a short time, the Applicant stopped and pulled up his pants and said, “Okay, you’d better get to class”.

28. The next offence recalled by Stephen also happened in the tennis courts. After the bells sounded to mark the end of recess, the Applicant appeared and told Stephen to pick up rubbish, which he did. He had not been picking up rubbish for long when the Applicant told him to stop. The boy started to follow the Applicant out of the tennis court area. When the Applicant got to the bottom of the stairs, he turned around and said, “Stop and turn around”. Stephen did as he was told. The Applicant then told Stephen to pull his shorts down and the boy complied. The Applicant then told him to bend over and the boy again complied. The Applicant then said words to the effect, “I want to do to you what you did to me the other time you were here. Don’t worry, it will feel good”. Stephen was bent over at the waist with his hands on his knees. He felt something moving in and out of his bottom, causing him some pain and a lot of discomfort (Count 27 - indecent assault).

29. The Applicant did this to Stephen on three or four occasions subsequently, most of which Stephen cannot precisely recall. However, Stephen does recall that on one of these occasions, the Applicant also put his penis into Stephen’s anus. The boy was at the bottom of the steps to the tennis courts and the Applicant told him to pull his shorts down and to bend over. Stephen did so and he felt something going into his bottom and then moving in and out of his bottom. Once again, this was uncomfortable but not extremely painful (Form 1 offence attached to Count 29 - indecent assault).

30. This activity stopped and then Stephen felt extreme pain. He felt “something larger being forced into my bottom”. He stood up and turned around to see the Applicant’s standing there with his penis exposed and erect. The Applicant had inserted his penis into the boy’s anus (Count 29 - buggery).

31. On another occasion, towards the end of recess, the Applicant told Stephen to pick up rubbish from the tennis court area. After picking up the rubbish, Stephen saw the Applicant standing at the bottom of the stairs with his penis exposed through the zipper of his pants. The Applicant told Stephen to put his mouth around his penis and “pretend it’s a lollipop”. Stephen then put his mouth onto the Applicant’s penis. The Applicant’s penis was soft. The Applicant moved his penis back and forth whilst it was in Stephen’s mouth. Stephen stopped and said, “I don’t want to do this”. The Applicant said, “Don’t tell anybody” (Count 30 - indecent assault).

32. The final offence that Stephen recalled occurred shortly before Christmas 1980. It was towards the end of recess and Stephen was playing on the tennis court. The Applicant made him pick up rubbish. As Stephen was picking up rubbish, the Applicant told him he could stop. As Stephen followed the Applicant out of the tennis courts, the Applicant stopped at the bottom of the stairs and exposed his penis and told Stephen to touch it. The boy grabbed the Applicant’s penis and pulled it in an up and down motion (Form 1 offence attached to Court 30 - indecent assault). As was usually the case, this activity did not go on for long. The Applicant stopped and said, “Okay, that’s enough, go back to class”.

33. Stephen first disclosed the Applicant’s abuse when he was in his early 20s. He told a friend that he had been molested when at school. Several years ago, Stephen saw a solicitor who helped him draft a statutory declaration and that statutory declaration is broadly consistent with his statement to police.

Offences Against David

42. In 1980, David was a Year 5 student at St Patrick’s College. He was nine or 10 years old. In one sport, David played for the school. Another brother was the coach for that sport. David was often required to leave half-way through training to go and see the Applicant in his classroom.

43. David recalls that he attended the Applicant’s classroom almost every time he had training, which was twice a week for several months. He is not able to recall how it started, but what used to happen was that he and the Applicant would “wrestle and rumble” on the floor of the classroom. It would last for about 20 minutes and afterwards the Applicant would give David $1.00 or $2.00. After a couple of months of this, the Applicant started asking David to take his shirt off whilst they were wrestling.

44. On one occasion, the Applicant told David to take off all of his clothes. David removed everything apart from his underpants and the Applicant and the boy wrestled. David thought that the Applicant may have had his shirt off as well. When it was all over, the Applicant gave the boy money and David got dressed and left (Count 34 - indecent assault).

45. The next time David went to see the Applicant after the lastmentioned incident was also during training. On this occasion, the Applicant told David to take off all his clothes including his underpants, which he did. The Applicant then told David to bend over, which he did. David was totally naked at this time. The Applicant stood behind him and the boy felt the Applicant push something into his backside which, according to David, was “not too painful”. David did not know what it was that the Applicant had inserted into his anus but, whatever it was, the Applicant left it in that position for about one minute. After it occurred, the Applicant gave David $1.00 or $2.00 (Count 35A - indecent assault).

46. David first complained about the Applicant’s conduct to his then partner in around 1997. In 2001, he consulted a solicitor about suing the Catholic Church. David finally reported the matter to police at the end of 2012 when he saw the news about the forthcoming Royal Commission into Institutional Responses to Child Sexual Abuse.

Evidence of Admissions

47. Investigating police obtained a letter from the Catholic Church in which the Applicant had responded to some allegations made by Robert. In the course of that letter dated 29 May 2006, the Applicant said, “In response to [Robert’s] allegations, I acknowledge that something serious happened. There were times of inappropriate sexual behaviour on my behalf, and what has been alleged is substantially true”.

48. Records from the Catholic Church also indicate that the Applicant made admissions to counsellors.

The Applicant is Arrested and Interviewed

49. The Applicant was arrested on 18 December 2013 and participated in an electronically recorded interview on that day. He made very scant admissions.

The Applicant’s Subjective Circumstances

50. The Applicant was born in March 1955. He was 25 or 26 years old at the time of the offences and almost 61 years old at the time of sentence on 12 February 2016.

51. The Applicant has no criminal history apart from the offences which are the subject of this appeal.

52. The Applicant gave evidence at the sentencing hearing.

53. Tendered at the sentencing hearing were medical reports concerning the Applicant’s physical ailments from Dr Frank Gitau Ngenga (dated 7 December 1994), Dr IB Miller (dated 29 November 2011) and Dr Kin Vui Tan (dated 21 October 2015).

54. Also tendered was a two-page summary (prepared by the Applicant) of his employment and other activities. There was no other material by way of references or statements from third parties with respect to the Applicant’s employment history and other activities in Australia and (for a period between 1991 and 1994) in Kenya. I will return to this aspect when considering Ground 4.

55. The only other documentary material tendered for the Applicant on sentence was a list of documents served on the defence after the committal proceedings, which was relied upon with respect to the appropriate discount for his pleas of guilty.

56. The Applicant gave evidence that, from 1997, he had undertaken a counselling and treatment program associated with the Catholic Church called “Encompass Australasia”. Although the Applicant gave evidence to this effect, which he had mentioned as well to the probation officer who prepared a presentence report, no report or other material from Encompass Australasia or the psychologist who treated the Applicant (Dr Taylor) was tendered at the sentencing hearing. Nor (unusually) was any psychiatric or psychological report tendered for the Applicant on sentence.

57. A presentence report dated 4 December 2015 prepared by Ms Deborah Buckley, Senior Community Corrections Officer, was tendered at the sentencing hearing. The presentence report was based upon interviews with the Applicant and examination of some documentary material, together with contact by Ms Buckley with a forensic psychologist employed by Community Corrections, which involved an actuarial risk assessment concerning the Applicant’s suitability and access to sex offender treatment programs and an assessment as to his risk. The presentence report noted that this assessment was “not a comprehensive risk assessment”.

58. The Applicant told Ms Buckley that (as at December 2015) he resided alone in rented accommodation at Lithgow, having relocated to that area in 2012 when he resigned from his position with the Patrician Brothers. The Applicant was in receipt of a Disability Support Pension arising from the Applicant’s diabetes, arthritis and pancreatitis.

59. The risk assessment part of the presentence report noted that the Applicant had completed treatment with Encompass Australasia in 1997 and 1998 and that the program is no longer operational. The Applicant informed the probation officer that he “admitted his offences in the treatment program ‘to a degree’ and disclosed his offences to his family, but not to police”. The Applicant stated to the probation officer that “the program assisted him in developing a plan to avoid reoffending, such as avoiding contact with children”. The Applicant stated that “Encompass helped him to understand himself better, to accept what he had done and to cope in a positive way” and that “he maintained regular contact with Dr Taylor or another therapist until 2012, for support to avoid reoffending”.

60. According to the presentence report, the Applicant “claims to have no memory of the more intrusive offences which involved penetration and no memory at all of one of the victims, but remembers ‘hugging’ two of the victims” and that he stated that “he does not remember the victims being distressed and that ‘everything was over quickly’”.

61. The presentence report noted that the Applicant’s risk of reoffending in a sexual manner had been assessed, using STATIC-99R, as in the “low risk range, using only static (historical) risk factors”. On an assessment of stable dynamic risk factors (those amenable to treatment), some risk factors for reoffending were identified, which were addressed in the report based upon the Applicant’s own account.

62. The Applicant told the probation officer that he had never had an intimate relationship with an adult and that his deviant sexual preference had involved sexual abuse of under-aged boys in the early 1980s. Accordingly, it may be accepted that the Applicant was and remains a paedophile with an exclusive sexual interest in young boys.

63. The Applicant informed the probation officer that he had supportive friends and family and that he had “learned to manage” his sexual thoughts and feelings. Taking both the static and dynamic assessments into consideration, it was assessed that the Applicant’s overall risk of reoffending in a sexual manner was in the low range. This assessment took into account that these offences occurred in 1980 and 1981 and that there have been no charges for subsequent offences. It was recommended that the Applicant be assessed as to his suitability for a sex offender treatment program in custody.

64. The sentencing Judge summarised the Applicant’s background in the following way in the remarks on sentence (ROS25-26):

“Mr Stanton is now 60 years of age. He was one of seven children born to his parents.

He was brought up in a supportive and loving family. Both of Mr Stanton’s parents were active members of their relevant Roman Catholic parish.

Mr Stanton completed year 12 at the Holy Cross College at Ryde. Following that he obtained a teaching degree.

In 1976 he was professed as a Brother of the Patrician Brothers where he became known as Brother Jeffrey. As I have already noted, Mr Stanton was teaching at the Patrician Brothers College in 1980 and 1981 when he committed these offences. He was approximately 25 years old at the time.

In the pre-sentence report obtained in these proceedings, it is stated that the offences came to the attention of the school authorities and Mr Stanton was removed from that school in 1981. It is noteworthy that the police do not appear to have been involved at that time.

He remained a teacher within the Patrician Brothers Order until about 2012.

Mr Stanton did not however teach primary aged children after being removed from the Patrician Brothers College. Rather, as I would understand it, he taught high school students in a New South Wales Catholic school from 1982 to 1990 and high school and adult students in Kenya between 1990 and 1994. His employment history from 1994 to 2012 is not clearly revealed in the material before me.”

65. His Honour turned to the evidence concerning psychological counselling undertaken by the Applicant (ROS26-27):

“In 1997 the offender commenced a program associated with the Catholic Church called Encompass Australasia. This program offered ‘psychological services to professions who have psycho-sexual disorders and other associated psychological problems’ and treatment to what is euphemistically referred to as ‘professionals who have committed professional boundary violations…’.

Mr Stanton maintained regular contact with the former clinical director of that program, Dr Taylor, or another therapist in that organisation until 2012. No report was forthcoming from that organisation in the offender’s case. Nor was any other expert’s report tendered in the offender’s case.

The Court is therefore unable to make any assessment as to effectiveness or otherwise of the programs offered to Mr Stanton by Encompass Australasia.

It is, however, significant to note that in his evidence on the sentencing hearing, Mr Stanton stated that upon his release from custody he intended to seek further treatment from a psychologist. The fact that he appears to have had, to date, 15 years of treatment itself speaks a significant underlying problem.

In the absence of any material from Encompass Australasia or any other psychologist other than the brief assessment by the Department of Corrective Services’ forensic psychologist, I am unable to conclude, on the balance of probabilities, that Mr Stanton’s prospects of reoffending are low – notwithstanding that he may not have sexually abused children since 1981. I have used the word ‘may’ because there was in fact no express evidence from Mr Stanton on that topic.

Special deterrence therefore remains a significant consideration – notwithstanding that Mr Stanton has no criminal convictions before or after the offending conduct with which I am concerned.”

Victim Impact Statements

66. Victim impact statements were made by Robert and David. Stephen did not provide a victim impact statement. The giving of a victim impact statement is not mandatory: s.29(1) Crimes (Sentencing Procedure) Act 1999. The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim: s.29(3). Indeed, as will be seen, common law sentencing principles operate clearly to the contrary in the case of child sexual abuse.

67. The sentencing Judge referred to the impact of these crimes on the victims (ROS24-25):

“[Robert] and [David] provided the court with written victim impact statements. In addition, [Robert] attempted to read his statement to the Court but, after a short time, he was unable to continue. His partner completed that public reading for him.

[David’s] statement was brief – but I do not intend any disrespect to him by describing it in that way. The intensity of his still raw emotions is clear from his statement.

[Robert’s] statement was somewhat longer. It indicates the depth of long term pain and suffering which he has felt as a result of the offender’s criminal behaviour.

Although [Stephen] did not provide a victim impact statement, the Court is entitled to have regard to the well-known fact that the victims of child sexual assault very frequently suffer long-term, and serious, psychological consequences.

Moreover, those consequences are not limited to the obviously, at face value, more serious offences.

In this regard, I think it is appropriate to repeat what was said by the President of the Royal Commission into Institutional Responses to Child Sexual Abuse at the opening hearing of that Royal Commission on 16 September 2013. In the course of his Honour’s opening remarks, McClellan JA said:

‘What many may consider to be low levels of abuse of boys and girls can have catastrophic consequences for them, leading to a life which is seriously compromised from what might otherwise have been. Both boys and girls are left with a distrust of adults and difficulties in intimacy. Inappropriate touching of boys may leave them with confusion as to their sexual identity. This can result in life long difficulty in relationships which can cause problems in other aspects of their lives. Although the impact on the lives of abused persons has been reported within the academic literature I have no doubt that it is not well understood by the general community. In my role as a judge I have been called upon to review many of the sentences imposed upon people convicted of the sexual abuse of children but I readily acknowledge that until I began my work with the commission, I did not adequately appreciate the devastating and long lasting effect which sexual abuse, however inflicted, can have on an individual’s life’.”

68. The approach adopted by the sentencing Judge in this respect is consistent with contemporary sentencing practice in this area as reflected in the decision of this Court in R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at [110]:

“This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can do’. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].”

Some Findings of the Sentencing Judge

69. It is appropriate to set out some findings of the sentencing Judge to which particular grounds of appeal relate.

69. His Honour said with respect to the discount for the Applicant’s pleas of guilty (Ground 1) (ROS28-29):

“One matter which did attract some debate during the sentencing hearing was the appropriate discount for the plea of guilty.

Mr Stanton was committed for trial on 26 September 2014. A trial date was appointed for 12 October 2015 and that was the date on which pleas of guilty were entered. However, it had been indicated in late September 2015 that pleas of guilty would be entered.

The pleas followed certain plea negotiations and the late service of some Crown material. As I have not been given the served Crown material, I am unable to make a well informed assessment about the significance of the late served material on the offender’s decision to ultimately plead guilty.

In this regard the Crown challenged the offender’s evidence that it was this late served material that caused him to fully comprehend his wrongdoing. In this respect, the Crown placed into evidence a statement of [Robert] made 3 May 2006 and an acknowledgement that the statement was ‘substantially true’ in a letter signed by Mr Stanton on 29 May 2006.

The offender has the onus of proof, on the balance of probabilities, of establishing that he was not in a position to reasonably enter a plea of guilty at an earlier stage. I am not satisfied that he has discharged that onus.

Accordingly, there will be a discount for the pleas of guilty of 15%.”

71. With respect to the prospects of the Applicant reoffending (Ground 2), his Honour expressed conclusions (ROS26-27) as set out at [65] above).

72. Concerning the issue of remorse (Ground 3), the sentencing Judge said (ROS29):

“Mr Stanton expressed remorse in the witness box. The Crown challenged the genuineness of those expressions, particularly in the light of the offender’s failure to frankly admit, until close to trial, the full scope of his criminal behaviour. In this regard, I do not accept that there is any evidence that the incident which occurred in Kenya in 1994 had any direct effect on the offender’s capacity to remember things he had done to children in 1980 and 1981. On the other hand, I was not convinced that the offender was deliberately lying when he said that he could not remember the full scope of his criminal conduct. I think the most likely explanation is he has blocked this from his mind. In the absence of any expert report I am however unable to be satisfied about the extent, if any, of Mr Stanton’s remorse.”

73. With respect to the approach to sentence for child sexual abuse offences committed in the 1980s and generally (Grounds 5 and 6), his Honour said (ROS29-30):

“The principles concerning offences against children are well known.

In R v Fisher (1989) 40 A Crim R 442, Yeldham J, with whom Maxwell J agreed, said:

‘…sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and… those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter those who may have similar inclinations… Heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults.’

Notwithstanding the intervening years, that statement of principle remains applicable today.

Although I have been given a number of authorities by the Crown Prosecutor – including the detailed schedule annexed to R v PWB (2011) 216 A Crim R 305, as well as a schedule of cases from the Public Defender’s website – and although both counsel acknowledged that the sentences for these criminal acts would have been significantly less if imposed in 1980 and 1981 than if the offences were committed closer to the present time, those authorities do not present a clear picture of what the earlier sentencing patterns and practices were. For example, that material does not reveal the relevant discount, if any, for a plea of guilty; it does not reveal the offender’s subjective circumstances; any aggravating factors are not easily identified; and the facts are set out in the briefest detail. Furthermore, neither the Crown nor counsel for the offender sought to assist the Court with any analysis of this rather incomplete collation of information. Whether, in the Crown’s case, that was because of the majority dicta in R v Barbaro I am presently unable to say.

I therefore have had regard to what Garling J said in R v MBP at para 87:

‘The guide which is entirely objective and easily ascertainable, and therefore which is likely to be of most use to a sentencing court, when attempting to impose sentences which accord with an earlier practice or pattern, is the maximum penalty fixed by the law for the offence charged, together with the range of criminality encompassed by the offence charge. By having regard to these features, a sentencing judge will be able to readily assess where the particular offence charged falls along the spectrum of conduct encapsulated in the offence, and accordingly how the particular offence ought be viewed against the maximum penalty fixed by the legislation’.”

74. His Honour made a finding of special circumstances taking into account, amongst other things, the approach to a setting of a non-parole period at the time of the offences (Ground 6) (ROS31):

“However, counsel for the offender did seek a finding of special circumstances to adjust the ratio of the non-parole period to the head sentence. This submission was not opposed by the Crown. The bases for the special circumstances submission were the ill health of the offender, the fact that this will be his first time in custody, his age, and because of the fact that at the time of the offending the ratio of the head sentence to the non-parole period was considerably lower than the prima facie ratio applicable at the current time.

I accept the submission in relation to special circumstances on these bases.”

75. The sentencing Judge nominated the indicative sentences in advance of the setting of an aggregate sentence (see [5] above). Having done so, his Honour said with respect to notional concurrency and accumulation and totality (ROS33):

“No indicative sentence would have been totally concurrent with any other sentences. All indicative sentences would have involved varying degrees of partial accumulation – with the two buggery offences having the least amount of partial accumulation.”

Ground 1 - Claim of Error in Calculation of Discount for the Applicant’s Pleas of Guilty

Submissions of the Parties

76. Mr Odgers SC, for the Applicant, submitted that the sentencing Judge had erred in his approach to the calculation of the discount to be applied for the Applicant’s pleas of guilty. He submitted that his Honour had erroneously approached the issue of the Applicant’s memory and the provision by the Crown of material after committal. He submitted that the circumstances of this case were such as to warrant a discount at or towards the top of the range to be given for a plea of guilty entered at a late stage.

77. The Crown submitted that it was open to the sentencing Judge to quantify the discount as he did having regard to the timing of the pleas of guilty.

Decision

78. His Honour’s reasoning under challenge on this ground appears at [70] above.

79. In approaching this ground, it should be kept in mind that, at first instance, the Crown submitted that the Applicant ought be allowed a discount of no more than 10%-15% whilst counsel for the Applicant submitted that the discount ought be 20%. The sentencing Judge allowed a discount of 15% which is now said to have been erroneous.

80. As mentioned earlier (at [3]), the Applicant entered pleas of guilty about one year after he had been committed for trial, effectively on the eve of his scheduled trial. His Honour had regard to submissions advanced in support of an argument for the Applicant that a discount of 20% ought be allowed because of what was said to be the late provision of material by the Crown. I do not detect any error in his Honour’s approach in not accepting that submission.

81. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea, the greater the discount: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at 10-11 [32].

82. Generally, the reason for the delay in the plea is irrelevant: R v Borkowski at 10-11 [32](8). The reason for the late pleas relied upon by the Applicant in this case does not assist him. There was, to say the least, some tension between the Applicant’s claimed lack of memory, the written admission made in May 2006 (see [47] above) and the litany of offences committed against three young victims over an 18-month period to which he pleaded guilty.

83. This Court will not generally find that there was an error in the exercise of discretion in choosing a discount of 15% rather than one of 20%, in particular where the Judge gives reasons for determining the discount chosen: Sullivan v R [2008] NSWCCA 296 at [14].

84. More than a year had passed between the date of the committal and the date when the Applicant entered his pleas of guilty. A discount of 15% was a more than reasonable reflection of the utilitarian value flowing from his pleas of guilty. No error has been demonstrated in his Honour’s approach to the discount.

85. I would reject the first ground of appeal.

Ground 2 - Claim of Error in Assessment of the Applicant’s Prospects of Reoffending

Submissions of the Parties

86. It was submitted for the Applicant that the sentencing Judge had erred in the approach taken to the Applicant’s prospects of reoffending set out at [65] above.

87. Mr Odgers SC submitted that the Applicant should have been sentenced on the basis that his prospects of reoffending were low. It was submitted that the Applicant had not committed any sexual abuse offences since 1981 and that there was evidence in the presentence report of a risk assessment which placed the Applicant in the low risk range for reoffending.

88. Whilst acknowledging that the evidence disclosed that the Applicant had a significant underlying problem by way of his paedophilic attraction to young boys and that such an attraction is incurable, it was submitted that the existence of that attraction did not undermine the significance of the evidence that indicated that the Applicant was unlikely to reoffend. It was submitted that the absence of any evidence concerning the Applicant’s involvement in the Encompass Australasia program (apart from that of the Applicant) did not constitute a basis upon which the Court should decline to make a finding that his risk of reoffending was low.

89. The Crown submitted that no error had been demonstrated on the part of the sentencing Judge in this respect. It was noted that the available evidence on the issue was principally that of the Applicant himself, both in his oral evidence on sentence and in what he had said to the probation officer for the purpose of the presentence report.

90. The Crown submitted further that the presentence report had noted that the Applicant himself reported admitting his offences “to a degree” within the Encompass Australasia program so that there was qualification as to what the Applicant himself had acknowledged, with this being relevant to an assessment of the risk of reoffending.

Decision

91. It was a matter for the sentencing Judge to form a view concerning the Applicant’s risk of reoffending. His Honour had the advantage of seeing and hearing the Applicant give evidence at the sentencing hearing, a process which clearly did not assist the Applicant.

92. The onus lay upon the Applicant, on the balance of probabilities, to establish that his risk of reoffending was low as this was a factor relied upon by him in mitigation of sentence.

93. The starting point was that the Applicant had committed multiple offences against three young boys in the early 1980s. It was common ground on sentence that the Applicant had paedophilic tendencies with a sexual interest exclusively in young boys. He acted on that attraction repeatedly when he was in his mid-20s, despite (or because of) the fact that he was in a position of trust concerning his victims. It may be accepted that the Applicant continues to experience those urges and that level of attraction towards young boys. As the Applicant accepted, it is not a condition that can be cured.

94. It is the case that the Applicant has not been charged with such an offence since 1981 so that there has been no finding against him of criminal conduct of this type since then. He is entitled to the presumption of innocence, but that principle can provide limited assistance on an issue where the Applicant carries the onus of proof on the balance of probabilities.

95. It is said that the Applicant undertook extensive treatment and counselling in the late 1990s with the Encompass Australasia program operated by the Catholic Church, with the Applicant apparently maintaining contact with the psychologist, Dr Taylor or another therapist, until relatively recent times. There was no evidence from Dr Taylor or anyone associated with the Encompass Australasia program which was relied upon on sentence. Although there was evidence that the Encompass Australasia program no longer existed as such, there was no indication that Dr Taylor or any therapist who treated the Applicant was not available, nor that any records of that program were not available to assist the Court with an understanding of the steps which had been taken with respect to the Applicant whilst he was attending that program. It is also noteworthy that the Applicant, himself, indicated that ongoing treatment and counselling would be appropriate in his case and that he would expect to receive it.

96. The sentencing Judge approached the risk assessment in the presentence report with some care, for understandable reasons. The report itself said it was “not a comprehensive risk assessment”. In attempting a dynamic risk assessment with respect to the Applicant, there was no material available apart from what the Applicant himself said together with the absence of any criminal history since 1981.

97. It was open to the sentencing Judge to make a finding, as he did, that he was unable to conclude on the balance of probabilities that the Applicant’s prospects of reoffending are low. It seems that this finding was affected by the unpersuasive nature of the entirely uncorroborated evidence of the Applicant himself. Such a finding was open to the sentencing Judge on the evidence and no error has been demonstrated in his approach to this issue.

98. I would reject the second ground of appeal.

Ground 3 - Claim of Error in Failing to Find that the Applicant was Remorseful

Submissions of the Parties

99. It was submitted for the Applicant that the sentencing Judge had erred in his approach to the Applicant’s remorse in the extract from the remarks on sentence at [72] above.

100. Mr Odgers SC submitted that it was notable that his Honour had not found that the Applicant was deliberately lying when he said that he could not remember the full scope of his criminal conduct. It was submitted for the Applicant that his Honour’s statement that the most likely explanation was that the Applicant “has blocked this from his mind” involved a finding of lack of memory on this aspect. It was submitted that his Honour had fallen into error in regarding the absence of any expert report as being pertinent to this issue.

101. The Crown submitted that his Honour had not erred in this finding, nor in the reasoning supporting it, and that the finding was open to the sentencing Judge.

Decision

102. I do not accept the argument for the Applicant as to the proper understanding of the sentencing Judge’s reference to the Applicant having “blocked” matters from his mind. It is necessary to read fairly the entirety of the remarks on sentence in areas which bear on this issue. It is apparent that the sentencing Judge regarded as significant the absence of evidence from any expert with regard to the Applicant’s criminal conduct, his treatment and counselling in that respect, and his reasoning process concerning his offences, as well as his claim of lack of memory.

103. I construe his Honour’s reasons as a finding that the likely explanation for the Applicant’s suggested memory problems was a type of blockage, denial or unwillingness to accept that he had conducted himself in the ways identified by his victims and in the Agreed Statement of Facts. The evidence before the sentencing court had indicated that the Applicant had partially accepted what he had done in his dealings with Encompass Australasia.

104. In the circumstances of this case, the issue of the Applicant’s remorse was tied inextricably to the manner in which he had approached, rationalised or blocked his thought processes with respect to his heinous conduct in the years which had passed since the offences.

105. The sentencing Judge had the opportunity to see and hear the Applicant give evidence. His claim of remorse was tested in evidence. It is clear that the sentencing Judge was unimpressed by the Applicant’s evidence.

106. In my view, it was entirely open to the sentencing Judge to make the finding which he did, which was, in effect, a finding that he was not satisfied on the balance of probabilities about the extent (if any) of genuine remorse on the part of the Applicant. The evidence of the Applicant had the flavour of a belated willingness to plead guilty in the shadow of the trial. Despite his apparent treatment and counselling as part of the Encompass Australasia program, he did not demonstrate any real insight into his offending or its impact on his victims. A claim of remorse on sentence against this background was to be approached with circumspection or scepticism.

107. The challenged finding was open to the sentencing Judge and no error has been demonstrated in that respect.

108. I would reject the third ground of appeal.

Ground 4 - Claim of Error in Failing to Give Any Mitigating Effect to Evidence of Good Character

Submissions of the Parties

109. It was submitted for the Applicant that there was evidence of good character before the sentencing Judge in the form of the two-page document prepared by the Applicant which recounted his employment history and other activities since 1981.

110. Senior Counsel for the Applicant acknowledged that counsel for the Applicant at first instance made no reference to this material and made no submission that it ought be taken into account as evidence of good character on sentence. It was submitted, however, that the Crown written submission at first instance had noted that the Applicant was entitled to have his good character taken into account although, given the nature and circumstances of the offences, the Applicant’s otherwise good character was only a small factor to be weighed in the sentencing exercise: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at 278 [33]-[34]. The Crown had noted as well that the fact that the Applicant had used his position as a religious brother and teacher to gain access to his victims was a further factor that indicated that any benefit which the Applicant could derive for his otherwise good character should be small: BJS v R (2013) 231 A Crim R 537; [2013] NSWCCA 123 at 585 [240].

111. It was submitted that the sentencing Judge had made no reference to the matter other than to note the Applicant’s employment history (see [64] above). It was submitted that the Court should conclude that the sentencing Judge had erroneously failed to take into account the Applicant’s otherwise good character.

112. During the course of the hearing in this Court, an enquiry was made of counsel as to whether s.21A(5A) Crimes (Sentencing Procedure) Act 1999 applies to this Applicant so that his good character or lack of previous convictions ought not be taken into account as a mitigating factor if the Court is satisfied that the factor concerned was of assistance to him in the commission of his offences. It was accepted that this provision could apply to the Applicant if his offences fell within the definition of “child sexual offence” in s.21A(6) of the Act. That definition appears to be an exhaustive one which nominates offences under particular sections as constituting the group of offences which are capable of being a “child sexual offence”. It is the case that offences under ss.79, 80 and 81 Crimes Act 1900 are not included in that definition. Mr Odgers SC submitted that the section should not apply to the Applicant as his offences are not included in the relevant category. That said, Mr Odgers SC accepted that s.21A(5A), in effect, reflected the common law in any event (T11.19, 16.6, 3 May 2017). He submitted that the relevant evidence of good character in this case concerned the period since the commission of the offences in 1980-1981.

109. The Crown submitted that the Court should be cautious in approaching this ground as it had not been argued for the Applicant at first instance that a finding should be made that he was otherwise of good character with that aspect to be taken into account on his behalf on sentence: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at 477-478 [79]-[82].

110. The Crown submitted that the Applicant had abused his position and standing as a religious brother and teacher in order to exploit and abuse his victims so that any leniency which could be extended to him for his otherwise good character would be negligible.

111. It was submitted that the evidence relied upon by the Applicant was slight, involving only the Applicant’s employment and activity history in a document prepared by himself.

Decision

116. There is, at least, doubt as to whether s.21(5A) applies to the Applicant given that the offences which he committed are not specified in the exhaustive definition of “child sexual offence” in s.21A(6) of the Act.

117. If that provision does not apply to a person in the Applicant’s position, that would appear to be a matter of legislative oversight. It is clear that that provision applies to offences committed both before and after the commencement of that subsection. The criminal conduct caught by the offences listed in the definition of “child sexual offence” undoubtedly picks up modern provisions which reflect the offending conduct committed by the Applicant in 1980 and 1981 under the then applicable provisions of the Crimes Act 1900.

118. As Mr Odgers SC noted, there is no real difference between s.21A(5A) and otherwise applicable common law principles. The fact that good character was a condition precedent to him holding the position of a school teacher with access to young children makes it difficult for the Applicant to rely in any meaningful way upon evidence of what is said to be his otherwise good character.

119. It is noteworthy that the Applicant’s counsel appearing before the sentencing Judge did not advance a submission by reference to the suggested otherwise good character of the Applicant. This probably reflected the slender foundation for such an argument based as it was upon a two-page document prepared by the Applicant himself which was not otherwise supported or corroborated by any other person. Although the Applicant gave evidence at the sentencing hearing, it is apparent that the sentencing Judge was unimpressed by aspects of it. His Honour was not bound to accept the Applicant’s uncorroborated account of his history since the commission of the offences.

120. This is not a case such as Ryan v The Queen where there was a range of references and testimonials of persons who could speak in positive terms of the good works undertaken by the offender in that case, which were to be taken into account despite his otherwise persistent sexual offending against children.

121. The sentencing Judge had regard to the Applicant’s employment history and his history of activities, which were recited together with the fact that he had no criminal convictions apart from those arising from this criminal conduct. These aspects were taken into account by the sentencing Judge in the exercise of his sentencing discretion.

122. The fact that the Crown may have mentioned in written submissions at first instance that, if any weight was to be given to the Applicant’s activities which may bear upon good character, then very little weight could be given to it, given the nature and frequency of his offences, does not advance the Applicant’s position in this Court.

123. The sentencing Judge referred to the evidence upon which the Applicant relies, which was taken into account on sentence, and made findings by reference to the arguments advanced to the Court on behalf of the Applicant at first instance.

124. The Applicant has not demonstrated error in accordance with this ground of appeal.

125. I would reject the fourth ground of appeal.

Ground 5 - The Sentencing Judge Erred in Determining the Aggregate Sentence

Submissions of the Parties

126. Mr Odgers SC acknowledged that an indicative sentence is not itself amenable to appeal, but submitted that an erroneous approach in the indicative sentences may reveal error in the aggregate sentence reached: Brown v R [2012] NSWCCA 199 at [17].

127. It was submitted for the Applicant that the indicative sentences supported a conclusion that the sentencing Judge erroneously gave no weight at all to subjective mitigating considerations. By way of example, it was submitted that the sentencing Judge had indicated that the sentence that he would have imposed for Count 30 was one of four years and three months, which had been reduced by 15% from five years. The maximum penalty for that offence was imprisonment for five years. It was apparent (it was submitted) that his Honour accepted that this offence was at the highest end of the range of objective seriousness, and was accordingly a worst case, and there was a Form 1 offence to be taken into account as well in this respect. However, apart from the 15% discount for the plea of guilty, it was submitted that no account seems to have been taken of the subjective mitigating factors in the Applicant’s favour.

128. The Applicant submitted that the sentences indicated for Counts 5, 21, 27 and 35A were all terms of four years (after the 15% discount), in circumstances where the objective seriousness of the offences was assessed as being towards the upper end of the range or at the upper end of the range. It was submitted that these sentences suggested that no account was taken of the subjective mitigating factors in the Applicant’s favour.

129. The Crown noted that, as Mr Odgers SC conceded, whilst indicative sentences may assist in determining whether there is error in an aggregate sentence, indicative sentences are not of themselves amenable to appeal: JM v R (2014) 246 A Crim 528; [2014] NSWCCA 297 at 537 [40](11). The Crown submitted that the indicative sentences were open to the sentencing Judge and did not, of themselves, disclose error so as to establish error in the determination of the aggregate sentence.

Decision

130. The sentencing Judge made a finding concerning the level of objective seriousness with respect to each offence (and each Form 1 offence attaching to a particular count) and those findings were not challenged on appeal in this Court.

131. The sentencing Judge identified a starting point which was discounted by 15% for the Applicant’s plea of guilty. It is the case that a number of the starting point sentences, before application of the 15% discount, were close to the maximum penalty for the offence. As the recital of the repeated offences committed by the Applicant against these young boys reveals, these were grave examples of offences of this type which gave rise to justifiable findings of a very high level of objective gravity, in particular in the counts relied upon by the Applicant in support of this ground. Further, Counts 5, 21 and 30 were each accompanied by one or two offences to be taken into account on a Form 1.

132. The Applicant was able to rely upon a number of subjective circumstances which were taken into account by the sentencing Judge. However, a number of findings which were not favourable to the Applicant were made by the sentencing Judge, and no error has been disclosed with respect to such findings as were challenged in this Court and dealt with in earlier grounds.

133. This is not a case where there was a powerful array of persuasive subjective circumstances which could be deployed by the Applicant for the purpose of sentence. His offences were grave breaches of trust committed against little boys in his care on multiple occasions over an extended period of time. The subjective factors which he was able to call in aid related to his circumstances principally since 1981.

134. The objective gravity of the Applicant’s offences remained a dominant aspect in the sentencing process and the indicative sentences expressed by the sentencing Judge reflected this aspect. I am not persuaded that error has been demonstrated as alleged under this ground.

135. I would reject the fifth ground of appeal.

Ground 6 - Claim that the Aggregate Sentence is Manifestly Excessive

Submissions of the Parties

136. Mr Odgers SC submitted that the aggregate sentence imposed upon the Applicant for offences committed in 1980 and 1981 was manifestly excessive when regard is had to the fact that sentences for child sexual offences in that period were more lenient than today. It was submitted that the Court should conclude that his Honour erred in giving too much significance to the applicable maximum penalties and his assessments of objective seriousness and inadequate weight to subjective mitigating factors in the Applicant’s favour and to the fact that sentencing for child sexual offences was more lenient in the early 1980s. It was submitted, as well, that the level of notional accumulation reflected a breach of the totality principle.

137. It was submitted that the fact that the sentence was increased by 12 years and five months from the highest indicative sentence of 10 years and seven months reflected an erroneous level of notional accumulation which was manifestly excessive in all the circumstances. Mr Odgers SC submitted that the fact that the requirements of specific deterrence of the Applicant would be achieved, or very substantially achieved, by the indicative sentence for the most serious offence was significant, as was the fact that the Applicant would suffer significant retribution and denunciation for a number of his offences so as to operate against any substantial level of accumulation: Azzopardi v R (2011) 219 A Crim R 369; [2011] VSCA 372 at 390 [66].

138. The Applicant submitted that it is necessary to take into account that the severity of a sentence is not simply the product of a linear relationship but that severity may increase at a greater rate than an increase in the length of a sentence: R v MAK (2006) 167 A Crim 159; [2006] NSWCCA 381 at 164 [16].

139. It was submitted that a sentence of imprisonment for 23 years with a non-parole period of almost 14 years can properly be seen as a crushing sentence in the sense that it will induce a feeling of hopelessness and destroy such prospects as there may be of rehabilitation and reform: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 304, 308, 340; R v MAK at 164 [17].

140. It was submitted, as well, that the ratio between the aggregate non-parole period and the aggregate full term (59.8%) was erroneous as it was inconsistent with non-parole periods imposed at the time of the offences which lay between 35% and 50% of the full term: Wilson v R [2017] NSWCCA 41 at [35].

141. The Crown submitted that a substantial aggregate sentence had been imposed in this case, but that the sentence reflected the very great objective gravity of the Applicant’s offences. The Crown submitted that the sentencing Judge had regard to all objective and subjective considerations and made a finding of special circumstances, which resulted in a non-parole period which was not out of line with non-parole periods imposed for offences committed in the 1980s.

142. The Crown submitted that the aggregate sentence was not manifestly excessive in this case.

Decision

143. To make good the claim of manifest excess, the Applicant must establish that the sentence was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 371 [25].

144. The Applicant committed a large number of very serious offences against three young victims in his care over a period of about 18 months. Each offence constituted a grave breach of trust. The offences were aggravated by the process of grooming undertaken by the Applicant which involved, amongst other features, giving the boys sums of money. His offending involved use of threats. The Applicant’s offending extended beyond his physical acts (bad enough as they were) to the psychological control, manipulation and exploitation of boys who were entitled to look to him for protection. There was a protracted pattern of offending with the victims so that the Applicant’s offences constituted a grotesque and frightening course of conduct.

145. The sentence to be imposed was required to reflect the various purposes of sentencing in s.3A Crimes (Sentencing Procedure) Act 1999 including the impact of the crimes upon the victims and the community: s.3A(g). The victims of these offences have suffered undoubted permanent psychological damage as a result of the Applicant’s offences (see [67]-[68] above). Child victims are especially vulnerable and it is important that sentences passed for child sex offenders recognise the harm done to victims: s.3A(g); R v Gavel at 483 [112].

146. The sentencing Judge had regard to sentencing practices at the time of the commission of these offences in the manner described at [73] and [74] above.

147. His Honour had regard to the historical approach to the calculation of a non-parole period (see [74] above). Having done so, the sentencing Judge made a finding of special circumstances upon this and other bases, leading to the fixing of a non-parole period which was 59.8% of the full aggregate sentence. I detect no error in this respect. Nothing said in Wilson v R demands a finding of error when (as here) a sentencing court has taken into account all relevant factors and has fixed a non-parole period in the order of 59%-60%. It remains the case, as it has been since Power v The Queen [1974] HCA 26; 131 CLR 623, that the non-parole period should constitute the minimum period of incarceration which the objective circumstances of the offences, the subjective circumstances of the offender and application of relevant sentencing principles call for in the circumstances of the case. Here, the sentencing Judge had regard to all relevant factors including statutory considerations under ss.3A, 21A and 44 Crimes (Sentencing Procedure) Act 1999.

148. The Applicant’s subjective case was, in reality, a relatively limited one. There was his own evidence, together with medical reports concerning certain physical ailments which he had experienced, which could not have been expected to play a major role on sentence. In any event, the sentencing Judge had regard to these aspects in finding special circumstances (see [74] above).

149. The Applicant had the benefit of the absence of any further offences since 1981. Beyond that, however, the extent of the evidence was that the Applicant was a paedophile with a sexual interest in young boys only and that he had a period of counselling or treatment about which there was no evidence, documentary or otherwise, apart from the Applicant’s own account as to its effect upon him. The presentence report and associated risk assessment could rise no higher in objective worth than the Applicant’s own claims and statements on various issues.

150. The guarded approach taken by the sentencing Judge on a number of issues addressed in earlier grounds was understandable on the limited material before the sentencing court.

151. The sentencing Judge had regard to the concept of notional accumulation involved in the calculation of an aggregate sentence and expressed his findings in that regard at [75] above in a manner that does not disclose error. It is clear that his Honour had regard, as well, to issues of totality in determination of the ultimate sentence and the finding of special circumstances leading to the fixing of a non-parole period as found by his Honour.

152. I do not accept the submission made on behalf of the Applicant that his Honour erred on the issue of totality. The approach of the sentencing Judge accords with the totality principle as stated by this Court in ZA v R [2017] NSWCCA 132 at [68]-[93], where reference was made to Postiglione v The Queen, R v MAK and Azzopardi v R. Application of the totality principle was achieved in this case where his Honour had regard to individual indicative sentences before moving to the fixing of the aggregate sentence in a manner which involved, in a shorthand way, relevant features of the totality principle.

153. I am not persuaded that the aggregate sentence imposed in this case constituted a crushing sentence in the manner in which that term has been understood in decisions of the High Court of Australia and this Court. As this Court made clear in ZA v R at [76]-[85], the extreme length of a sentence does not necessarily allow it to be characterised as crushing and that a “richly deserved sentence”, which is not manifestly excessive, is not to be disturbed because the offender may feel crushed by it.

154. It may be accepted that the aggregate sentence was a very substantial one in this case. However, it was necessary that the aggregate sentence reflect the systematic, gross and repeated criminality of the Applicant committed against different child victims over an extended period of time: R v Gommeson (2014) 243 A Crim R 534; [2014] NSWCCA 159 at 551 [100].

155. I am not persuaded that the aggregate sentence imposed upon the Applicant is unreasonable or plainly unjust.

156. I would reject the sixth ground of appeal.

Conclusion

157. The Applicant has not made good any of his grounds of appeal.

158. I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.

159. ADAMSON J: I have had the benefit of reading in draft the comprehensive reasons and proposed orders of Johnson J. I agree with the proposed orders for the reasons given by his Honour.

160. CAMPBELL J: I have had the very considerable advantage of reading Johnson J’s judgment in draft with which I agree. At [154] his Honour points out that the sentence passed below “was a very substantial one”. It was doubtless stern. Taken as a whole the arguments advanced by Mr Odgers SC demonstrate that a lesser sentence may have been legally justifiable. But that is not the test. For the reasons given by Johnson J, the Applicant has failed to demonstrate that the sentence passed by the learned sentencing Judge is affected by appellable error. A less severe sentence is not warranted in law. I agree with the orders proposed by Johnson J.

**********

Decision last updated: 20 October 2017