R v Cudby

[2012] NZHC 636

PUBLIC VERSION

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.  EXISTING SUPPRESSION ORDER RE LOCATION OF PREVIOUS OFFENDING REMAINS IN PLACE.

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2011-067-000280 [2012] NZHC 636

THE QUEEN

v

MAURICE WILLIAM CUDBY

Hearing:         2 April 2012

Counsel:         L C Rowe for the Crown

C P Brosnahan for the Accused

Sentence:       2 April 2012

SENTENCING REMARKS OF MALLON J

Introduction

[1]      You appear for sentence having pleaded guilty to the following charges:

(a)       A representative count of indecently assaulting a boy under 12 years;1

1      Section 140(1)(a), Crimes Act 1961(maximum penalty: 10 years imprisonment).

R v CUDBY HC WANG CRI 2011-067-000280 [2 April 2012]

(b)A representative count of inducing a boy under 12 to do an indecent act;2

(c)       Two  representative  counts  of  sexual  violation  by  unlawful  sexual connection (involving the mouth and genitalia);3

(d)      A representative charge of sexual violation by unlawful connection

(involving penetration of the anus by the penis);4

(e)       A representative charge of indecently assaulting a boy between 12 and

16 years;5

[2]      You are here for sentencing in this Court because the Crown is seeking a sentence of preventive detention.

Circumstances of offending

[3]      The  charges  relate  to  offending  on  one  complainant  over  the  period December 1998 and December 2007.   The offending commenced when the complainant, a boy, was 6 or 7 years old and ended when he was about 15 years old.

During this period you were 58 to 68 years old.

[4]      You [ suppressed.]  The offending began when you encouraged the boy to touch your erect penis when you were in the shower. This occurred on a number of occasions over the period of about a month.   Following on from that you began to play with the  boy’s penis.   This included masturbating him and sucking his penis.

[5]      You also encouraged the boy into your bed.  You would masturbate him and have him masturbate you.  You would also perform oral sex on him and have him do

2      Section 140(1)(c), Crimes Act 1961 (maximum penalty: 10 years imprisonment).

3      Section 128(1)(b), Crimes Act 1961 (maximum penalty: 20 years imprisonment).

4      Section 128(1)(b), Crimes Act 1961 (maximum penalty: 20 years imprisonment).

5      Section 140A(1)(a), Crimes Act 1961 (maximum penalty: 7 years imprisonment).

the same to you.  This would happen about three or four mornings a week until about

May 2002.  [suppressed]

[6]      [Suppressed]   During [suppressed], the offending resumed.  Again it would involve masturbating the boy and performing oral sex on him and having him reciprocate on you.  The offending would occur in the [suppressed.]

[7]      When the boy was 12 your sexual offending progressed to anal intercourse. Mostly this involved you performing anal intercourse on the boy.  This occurred on a number of occasions (the boy recalls it as being about fifteen times whereas you say it was not as often as that – the exact number of times this occurred is not, however, material for sentencing purposes).   On two occasions the boy performed anal intercourse on you.  You did not at any stage of this offending use violence on the boy.

[8]      You say that the offending came to an end in about 2006 but whether it was then or 2007 is not material for present purposes. What brought it to an end seems to have been that [ suppressed  ] and by this stage the boy was interested in girls of his own age.   He disclosed  the  offending some time in 2011 and you were spoken to by the police.   You  admitted your offending and said that you knew it was wrong and that you had a sickness.

[9]      After 2007 and before your arrest on the current charges you did not reoffend. However, in 7 February 2011 you obtained work driving a school bus.  The school bus had mostly college-aged children but also picked up some primary-aged school children.  You had been encouraged to apply for the job by a friend because the bus company she worked for was short of drivers.  You started driving the bus a week or so after gaining the employment.   You had recently obtained a renewal of your P endorsement on your driver’s licence which enabled you to obtain the work.  The

factual position appears to be that your previous convictions were disclosed through the LTNZ vetting process when you applied for the renewal but for some unknown reason this was overlooked by LTNZ in granting you the renewal. When you applied for the job with the bus driving company, the factual position is a little unclear but [I’m] proceeding on the basis that you weren’t asked whether you had convictions, and that you did not have to fill out the usual questionnaire because the employer noted that you had a relatively new P endorsement.  So the position was that you it seems were not asked about your previous convictions and did not volunteer them. You were not working for long:  it seems you only drove the bus for two or three days and on two of these days you were supervised by another driver for training purposes.   The reason your employment came to an end is that a member of the public recognised you as being a convicted sex offender and your employment was immediately terminated.

Victim impact

[10]     I have statements from the complainant and [suppressed] about the impact of your offending on them.  The complainant is now 19.  He feels completely betrayed by you and now thinks that the time you spent with him was so that you could abuse him.  The sexual activity gave him pain, particularly when he went to the toilet.  He was too embarrassed to go to the doctor about it.  He feels you have ruined his life and damaged his potential.

[11]     The [suppressed] feels deceived and foolish.   [Suppressed] says that the complainant tries not to think about what happened but that his lifestyle is now all about,  as  [suppressed]  sees  it,  trying  to  anaesthetise  what  happened  to  him  and  [suppressed]  is concerned about his future.

Circumstances of the offender

[12]     You are now 72 years old, turning 73 later this month. You were first married in 1963.  You have three children from your first marriage.  You met your present wife in 2010 and married her in 2011.  She is aware of your offending but has stuck by you and is one of your main supports.

[13]     You have told the report writers that when you were about 8 to 10 an older man had masturbated you a number of times. You understood that this had happened to  a  number  of  other  boys  in  the  town  and  you  had  not  considered  it  to  be particularly traumatic or upsetting.   When you were about 13 and 14 you were regularly fondled by another older man for whom you were working.  It seems that these experiences have left you with a distorted view about the kind of offending that you yourself have engaged in.

[14]     After you left school you trained as a teacher.   You worked full-time as a teacher for 37 years in various positions.  One of your teaching positions was at a small country school where you were the principal and sole charge at the school. While teaching at that school you sexually offended against a number of the young girls at the school. When this offending came to light your first marriage ended.

[15]     I note that you maintain that the offending occurred over two years between

1992 and 1993, that it related to five girls who were between 8 and 12 years old, and that it began when a 12-year-old girl sat on your knee and you touched her genital area through her clothing.

[16]     However, I have the Judge’s sentencing notes for this offending which sets out more extensive offending.   It records that you pleaded guilty to and were convicted of 12 charges of indecent assault. The offending related to seven girls who were aged between 7 and 10.  The offending mostly involved you touching the girls on their vaginal area, sometimes over their clothing and sometimes inside their underwear.   You  committed  oral  sex  on  one  of  the  girls  and  indecently kissed another.  The offending occurred on a number of occasions on each of the girls.  This offending commenced in about 1977 and continued until about February 1993.

[17]     In December 1993 you were sentenced to five years’ imprisonment for this offending. You were 54 years old at that stage. While in prison serving that sentence you completed a group course at a sex offender unit in the prison. You were released on parole in June 1996. Your present offending commenced two to three years later.

[18]     You have three other convictions (two from the early 1970s and the other in

2000).   However these are for minor unrelated matters and I do not need to say anything more about them.

[19]     A psychologist,  Ms  Boyd,  and  a  psychiatrist,  Dr Judson,  have  prepared reports under section 88 of the Sentencing Act.  Your counsel has had these reports peer reviewed by Dr Blackwell, a psychologist.

[20]     In  discussing  the  offending  with  Ms Boyd,  you  said  to  her  that  the complainant had initiated it.  You said that your penis was erect from the warmth of the shower when this had happened.   You also said that the boy had wanted to continue the oral sexual contact because he enjoyed it.  You said that the offending had not occurred as often as the complainant said it had.  You were unsure of any likely negative impact the offending would have on the complainant.  Likewise you told  Dr Judson  that  you  did  not  consider  that  the  relationship  had  been  at  all damaging to the boy.  When you were interviewed by a probation officer, you gave the impression that the boy was able to choose whether to engage in the behaviour. However you did say that you were repulsed by your offending and you denied any other sexual arousal to males.

[21]     You told Dr Judson that you have had fulfilling sexual relationships with your female partners and  you  insist that  you  do  not  find  children  sexually arousing. However your history shows that this is not a correct self appraisal by you.   The comments you made to Dr Judson and to Ms Boyd about this are similar to what you told the psychologist about your earlier offending.  You minimised that offending by saying that it was in relation to five girls only, that the girls gave you attention by sitting on your knee and talking to you and that they were seeking sexual contact with you.   You were unable to state any likely negative impact you offending on them would have had on them.  Again, you denied being sexually aroused by the girls and that you have a sexual preference for children.

[22]     I will come back to what the experts say about your re-offending risk when discussing whether a sentence of preventive detention should be imposed.

Finite sentence

[23]     A sentence of preventive detention can only be imposed if I am satisfied that you are likely to commit another qualifying sexual offence if released at the sentence expiry date of the sentence I would otherwise impose.   I therefore start with considering what finite sentence would be imposed for the offending.

[24]     The lead charge is the representative charge of sexual violation.  The sexual violation occurred after a lengthy grooming period.  This grooming took the form of sexual activity with the boy when he was very young and through your involvement in his life as [suppressed].  You do not see it as grooming but it was.  You think the boy wanted the sexual activity but he was not in a position to make any proper choice about this.   He was just a very young boy when the sexual activity began and was still just a boy, at 12, when you first performed anal intercourse on him.  You were a adult of mature years and were in a position of trust [suppressed]. Your abuse of the boy extended over a lengthy period.

[25]     The Crown submits that the aggravating factors in this offending warrant a starting point of at least 16 years’ imprisonment (putting this at the bottom of what is called band 4  in the Court of Appeal’s  guideline judgment for sexual violation sentencing). Your counsel agrees that this is a band 4 situation.

[26]     I agree with counsel’s assessment.   It is confirmed with reference to other cases, starting points above 16 years in band 4 tend to be imposed where there is more than one victim in the offending.6   Of the aggravating factors discussed by the Court of Appeal,  your offending involved  planning (in  the sense of grooming), vulnerability (through age), a breach of trust (through the [suppressed] role you had) and repeated offending (although that point overlaps to some degree with the grooming involved here).  There was also what might be described as the usual and

inevitable psychological harm arising from this sort of sexual abuse.

6      It is similar in seriousness to R v N CA88/05, 23 November 2005. It is less serious than R v Turner HC Whangarei CRI 2010-027-001635, 11 April 2011; R v P CA176/04, 7 October 2004; R v T CA445/03, 7 October 2004; and R v Gordon [2009] NZCA 145.

[27]     The Crown submits that the starting point should be uplifted by one year because of your previous offending.   Your counsel accepts that your previous offending is a personal aggravating factor for which an uplift might be warranted. You have been held accountable for your previous offending and did have the benefit of a programme intended to assist you with your rehabilitation and yet you seem to have learned nothing.  Nevertheless, I have decided that the 16 year starting point is a sufficiently stern response to your offending, even in the light of your previous offending and I am not going to uplift it on account of that previous offending.  In taking that approach, I am conscious that a sentence of that length is likely to take up most, if not all, of your remaining life.  No uplift for additional specific deterrence seems warranted in these circumstances.

[28]     Turning to mitigating factors, age and ill-health can be taken into account where the sentence would have an appreciably harsher impact than it would on a younger, healthier offender.7  Your counsel submits that there is room for compassion because of your age.   But age alone is not a mitigating factor and I have already taken into account  your age in not uplifting the 16 year starting point  for your previous convictions.  There is nothing to suggest that prison will be unfairly harsh

on you at your age and, should it become so, the prison authorities can take whatever action is appropriate at that time.

[29]     You  have  apparently  said  that  you  are  glad  that  the  complainant  came forward so  that  this  can  all  be put  behind  you  and  the boy.    However,  as  the probation officer writes, you have sought to minimise your offending, to shift some of the blame on to the complainant, and to view yourself as a victim in that you could not stop yourself.  Your counsel submits that were simply wanting to set the record straight about the details of this offending and the previous offending rather than to shift blame.  That may be how you see it but there is nothing in particular which  demonstrates  real  remorse  other  than,  and  it  is  important,  your  early

acknowledgement of the offending.  You are entitled to a full discount because you

7      See R v Luce [2007] NZCA 476; R v Verschaffelt [2002] 3 NZLR 772 (CA); R v Fahey CA

184/00, 2 November 2000; R v McL CA5/96, 14 November 1996. This principle is given statutory recognition in s 8(h) of the Sentencing Act 2002, which provides that the court at sentencing must take into account any circumstances of the offender that mean that a sentence that would otherwise be appropriate would be disproportionately severe.

admitted the offending when you were arrested and you entered an early guilty plea. So deducting 25% from a starting point of 16 years’ imprisonment would give a sentence of 12 years’ imprisonment.

Preventive detention

[30]     I turn now to consider whether I am satisfied that you are likely to commit another qualifying sexual offence if you were released at the sentence expiry date. That would be when you are 84 years old.

Pattern of offending

[31]     The first thing I must consider is the pattern of serious offending.  I accept that there is a pattern.  As Ms Boyd says, the earlier offending involved seven pre- pubescent females who were known to you.   You were in a position of trust and power through your role as the sole charge teacher at the small, rural school.  Your offending appears to have started opportunistically in that the girls were sitting on your knee – possibly at your encouragement (the sentencing notes do not say), but even if not at your instigation or encouragement was not something you should have permitted. The offending occurred over a period of years.

[32]     Not long after your release from prison from that offending, and you began offending against the present complainant.  Like the girls it started when the boy was pre-pubescent and opportunistically.  You were in a position of power and trust over the boy, [suppressed] and the vast disparity in age between you and the boy.   On your account you took advantage of a very young boy’s interest in your erect penis when you were showering.  As the psychologist says, you did not appear to see the inappropriateness of showering with a 6 or 7 year boy despite your previous offending and the opportunity you have had to address the causes of that offending.  Your offending with the boy went on for many years.  It escalated in seriousness as the years passed, and involved a more serious violation of the boy than the sexual activity with the girls.   That may be partly because the opportunities to offend with the boy were greater and your grooming of him more sustained.

[33]     Dr Judson says that your history suggests that your future reoffending risk is most likely to occur within the context of [suppressed] where you have the care of children.  The other experts make similar comments and I will come back to that in a moment.

Serious harm to community

[34]     The next factor I must take into account is the seriousness of the harm to the community caused by the offending.   There is no doubt that your offending has caused serious harm to the young female victims in the past. The sentencing judge at that time referred to this in his remarks.  I have already referred to the effects on this boy and his mother in respect of your present offending.  The effects on them are typical of the serious harm caused by sexual abuse of young children.

Reoffending risk

[35]     The next factor I must take into account is information indicating a tendency to commit serious offending in the future.

[36]     Dr Judson says that it is of concern that you appear to have a very limited appreciation  of the seriousness  and  potential  consequences  to  the  child  of  your offending on him.   However, he also says that your increasing age and likely increasing physical frailty in the future is likely to mitigate against the risk of further offending.  He notes that you have a supportive partner who can help ensure that you do not have access to any children upon your release.

[37]     On the basis of the statistical tests, Ms Boyd says that you are in the medium- low8  or moderate9  or below average10  group on the various tests.  However, when she considers other factors, she assesses you as having a medium-high risk of serious sexual offending.  In her first report, she did not say whether this risk will dissipate with age and, if so, when.  She referred to the research which indicates that the risk

of  sexual  reoffending  decreases,  particularly  after  60 years  and  that  very  few

8      Automated Sexual Recidivism Scale (ASRS).

9      STABLE-2007.

10     PCL:SV.

offenders sexually offend after the age of 60.  However, she notes that you offended here when you were 68 and that this is very unusual.  She also says that the research indicates that the risk of sexual offending remains stable over at least a ten year period.

[38]     Ms Boyd was asked to provide further details about your risk on release, given your likely age at this time.  No further information was provided specifically addressing the reoffending risk of a person in their 80s.  The material that she had referred to in her first report was referred to.

[39]     Dr Blackwell provides some more detailed information on this topic.  In light of  the  information  about  your  employment  as  a  bus  driver,  she  revised  her assessment of your risk from moderate, up to moderate to high.  I’m going to refer to some of the matters she comments upon in relation to your reoffending risk in light of your age because that it is the crucial issue in your case.

[40]     She comments  that  it  is  sometimes  assumed  that  because an  offender  is elderly or suffers from erectile dysfunction that they are no longer at risk of reoffending sexually.  She goes on to say that increasing age is a moderating factor in relation to recidivist sexual offending.  She says that recidivism in sexual offending decreases with the age of the offender at the time of release from custody and offenders above the age of 50 years reoffend at a very low rate.  She says that the age category that you fall within consist of men aged 60 years (who were aged up to 12 years younger than you) but some were as old as 87 years, although she describes those at that end as being what she terms “outliers”.

[41]     She refers to the dynamic factors that are attributed to you.   Specifically, social influences, general social rejection, lack of concern for others, poor problem solving skills, negative emotionality, deviant sexual preference and poor cooperation with supervision.  She says that some of these are able to be mitigated.  She says the most serious dynamic factor for you is your apparent sexual deviation.  She says that you having offended at the age of 68 years is also problematic.   She says that the protective factors are that you are an opportunistic, rather than a predatory, offender and victims have been children that are known to you with whom [suppressed]

She says there is no evidence that you would seek out children unknown to you, however, that report was written before the information came to light about you driving on the school bus.

[42]     Her assessment is that the issue is whether you will continue to pose your current degree of risk upon release.  She says available data and research findings suggest that, for you, this level of risk may reduce significantly but some ongoing risk cannot be ruled out notwithstanding your increasing age.   She says the most protective factor for you in the community will be a release regimen that precludes victim access and provides ongoing monitoring of you, your psychological functioning and your living situation.

Interventions

[43]     The next factor I must take into account is the absence of, or failure of, efforts by you to address the cause or causes of your offending.  When you were in prison for your previous offending you completed 18 hours of individual treatment. You also completed a course at the sex offender treatment unit in the prison.   A report at the time described your progress as poor to moderate. You were assessed as being a moderate to high risk of further sexual offending.   After your release on parole you had further psychological treatment involving nine sessions.  At the end of this you were considered to have made minimal treatment gain and you were actively placing yourself in high risk situations.

[44]     As Ms Boyd says, it is of concern that, despite being an intelligent man who has had the benefit of these courses, you engaged in prolonged offending within a short time of completing the courses.  It is anticipated that you will be referred to a special treatment unit for sexual offenders in prison.  You have said to Ms Boyd that you do not want to reoffend and you want to do further treatment, although it is not clear why that would work now when it has not in the past.

Preference for finite sentence

[45]     Lastly  I must  take  into  account  the  principle  that  a  lengthy  determinate sentence is preferable to a sentence of preventive detention, if the determinate sentence provides adequate protection for society.

Overall assessment

[46]     I have looked at the cases to find any comparable situation.   I have found some examples where preventive detention has been imposed on offenders in your age category, or close to it.  However in each of these cases there are factors which make them distinguishable from your situation.  In particular:

(a)      I refer to R v Steedman.11    In that case the offender was assessed as having a very bad risk of reoffending described as “as bad as it could be” and he had refused to engage in treatment.

(b)I next refer to R v Jordan.12     The offender was close to 10 years younger than you.  He had a very extensive history and had previously been  warned  that  he faced  the prospect  of a  preventive detention sentence.

(c)      And I refer to R v Clark.13    There the offender was about 10 years younger than you, his sexual offending involved violence and he had a very extensive history of other offending as well.  He had been in and out of prison since he was 21 and was considered to have what was described as “anti-social personality disorder”.

[47]     A case where preventive detention was not imposed on an offender who was

57 years old – in part because of the offender remained a risk on release there was the possibility of an ESO order for up to 10 years – is Clapperton.14

11     R v Steedman CA307/01, 27 February 2002.

12     R v Jordan HC New Plymouth CRI-2008-043-1368, 8 April 2009.

13     R v Clark CA432/04, 9 June 2005.

14     R v Clapperton HC Napier CRI-2010-020-1694, 13 December 2010.

[48]     The Crown submits that the graduating seriousness of your offending, its

repeated nature, that it occurred shortly after release from imprisonment on similar charges, the failure of treatment to date, the diverting of blame and responsibility, the limited insight into the offending, the ages and gender of the victims you have offended against and the paramount need to protect other young children and teenagers, support a sentence of preventive detention.   The Crown this morning emphasises the need to protect the public.   The Crown submits that age is not a protective factor for you and in that regard refers to you having reoffended at a relatively old age and that you placed yourself in a position of risk through the seeking employment as a bus driver.  The Crown also refers this morning to your lack of insight into your offending.

[49]     Your counsel places particular emphasis on your age, the age that you will be upon release and the possibility of an ESO order which would serve out your life. Your counsel also emphasises the gap between 2007 and when you were arrested in the middle of last year when you remained offence free.  The defence also submits that driving a school bus is not quite in the same category as acting as a teacher or [suppressed] to a child.  That is true, although it is concerning that you did take on that position when you must have known it was not appropriate.

[50]    This is a difficult sentencing exercise.   I have carefully considered the submissions from both sides and studied the reports of the experts.  On balance, I am not satisfied that preventive detention should be imposed in your case:

(a)      You are an intelligent man who has expressed a willingness not to reoffend and to have further treatment.   I realise that this has not worked in the past but at least if you are willing to participate, there must be some prospect that it will assist you.

(b)Your age is a very material factor.  At the release date you will be in your early to mid 80s.  It can be expected that you will be physically more  fragile  than  you  were  when  the  offending  against  this  boy began.   Although Dr Blackwell refers to an example of an offender

aged 87, the experts are agreed that declining physical health with age does mitigate the risk.

(c)      The other important  factor  is  that  this  type of  offending involves situations where you have care for young children.   It has been described as opportunistic offending when you have a relationship of care with children.  That is a risk that can be managed by keeping you away from that kind of situation.  Your wife, if she is still with you, can help you with that but that on its own would be insufficient. However, you can be subject to an extended supervision order for up to 10 years.  That is something that can be considered when you are coming up for release in light of all the information available at that time.   It is that possibility that tips the balance against preventive detention in your case.   An order as your counsel submits, if it is necessary, it would see out your life.

Minimum period of imprisonment

[51]     I’m going to impose a finite sentence of [12] years’ imprisonment, which means I also need to consider a minimum period of imprisonment in relation to that. The Crown submits that that should be two thirds of your sentence.   The defence submits that the minimum period should be at the lower end available as the Parole Board’s hands would not be tied to the same degree in the event of anticipated age deterioration and likely diminution of risk as a consequence.   I consider that a minimum  term  of  imprisonment  is  necessary  because  one  third  of  a  [12] year sentence would be insufficient for the purposes set out in s 86 of the Sentencing Act, particularly deterrence and protecting the community.   However, taking on board your counsel’s submission I impose a minimum term of half your sentence.  That is a minimum term of 6 years.  In that way, in light of your health, your reoffending risk can be considered on the material before the Parole Board at the appropriate time.

Sentence

[52]     So what all that comes down to, and this is where you must now stand while I pass sentence on you:  Mr Cudby, you are sentenced to a term of imprisonment of 12 years – so it was 16 discounted to 12 because of your guilty plea – and I am imposing a minimum period of imprisonment of 6 years.  That is all, you can stand down.

Name suppression

[53]     I will just record that there are suppression orders preventing publication of the location of the offending previously (that is an order that is already in existence), and there is to be an order preventing publication of the locations of this offending, Mr Cudby’s relationship to the complainant and any other details of the offending likely to identify the complainant.  The sentencing remarks will identify the material that needs to be suppressed from them in square brackets but they will fall under those categories.

Mallon J Postscript No 1:

The 12 year sentence of imprisonment applies to the lead charge, being the representative   charge   of   sexual   violation   (penetration   of   anus   with   penis). Concurrent terms of 8 years’ imprisonment are imposed on each of the other two sexual  violation  charges  and  concurrent  terms  of  four  years’ imprisonment  are imposed on each of the indecency charges.

Postscript No 2:

On 11 April 2012 I received a joint memorandum of counsel.  The memorandum advised that there was an error in the number of charges before the High Court for

sentencing. The error arose because the caption on the summary of facts incorrectly set  out  6  charges on  which  Mr  Cudby  was  to  be  sentenced, when Mr  Cudby had pleaded guilty to 8 charges and was to be sentenced by the High Court on all

8 charges.  This error was repeated in the Crown's sentencing submissions.  Apart from  the  error  in  the  caption,  the  summary  of  facts on  which  Mr Cudby  was sentenced correctly described his offending.

As a result of this error, when Mr Cudby was sentenced on 2 April 2012 no penalty was imposed in respect of counts 5 and 6 in the indictment.  These counts were of indecent assault on a boy between 12 and 16 years (count 5) and an indecent act with a boy under 16 years (count 6).  Counsel proposed that I impose, with their consent, concurrent terms of imprisonment of four years on counts 5 and 6.  This is in line with the concurrent terms I had already imposed on the other counts of indecent assault/act (counts 1, 2 and 8.)

I agree that what counsel propose is appropriate.  The end sentence of 12 years imprisonment on the lead count (being the representative charge of sexual violation - penetration of anus with penis) reflected the totality of the offending, including the offending in counts 5 and 6.  Concurrent terms of four years' imprisonment on counts

5 and 6 are imposed.

Mallon J