District Court New South Wales Medium Neutral Citation: R v Page [2022] NSWDC 697 Hearing dates: 12 December 2022 Decision date: 12 December 2022 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Imprisonment for 2 years and 4 months with a non-parole period of 1 year and 2 months Catchwords: CRIME - SENTENCE - assault a female and commit an act of indecency upon a person under 16 Legislation Cited: Crimes Act 1900 (NSW) s 76 Category: Sentence Parties: Rex (Crown) Johnathon Page (Offender) Representation: Mr Evans (DPP) Ms Lin (Counsel for the offender) File Number(s): 2018/00354726 Publication restriction: Nil 1. Jonathon Page, you appear for sentence today in relation to one offence and that is assaulting a female and committing an act of indecency upon a person under 16 years of age. This involves a contravention of (the then) s 76 of the Crimes Act 1900 (NSW). 2. At the time the offending took place, the maximum penalty was imprisonment for five years and, in those days, there was no standard non-parole period. By referring to "those days", I am referring to the fact that the offending took place somewhere between 6 August 1973 and 6 August 1975. 3. I pause to observe that the offending to which I shall soon return, would, if committed now, not be indecent assault, but would be sexual assault and the maximum penalty would be considerably greater. That is mentioned simply for completion; but also to give you some understanding of the seriousness of your offending. 4. The facts surrounding your offending are contained in a statement of agreed facts and can be summarised by me as follows. 5. In 1973, the victim of your offending was three years old and she lived with her parents and her siblings in a boarding house somewhere in Sydney. You also lived in that boarding house. At that time you were 26 years old. 6. It would seem that you became friendly with the victim's family whilst they and you lived in the boarding house. 7. In August 1974, the victim and her family moved from the boarding house to a house in Strathfield. You would visit that house from time to time. 8. There was an occasion, about six months after the victim's family moved into the Strathfield home, when you visited that home. The victim's mother was reading books to the victim and her sister in one of the bedrooms. You were also in that bedroom, reading books to the girls. 9. At some point, the victim's mother left the bedroom to "put the kettle on". She was gone for a very short period of time; but, within that short period of time, you struck. You removed the victim's clothing and you performed cunnilingus upon the three-year-old child. 10. As you were doing that, the victim's sister, who was in the room when you started, ran from the bedroom and called to her mother, telling her (that is the mother) what you were doing. 11. As the mother approached the bedroom, you swiftly left the premises and that family never saw or heard from you again. 12. The Court is required to form an assessment of the objective seriousness of that offence for an offence of its kind. For an act of indecent assault, it is above the mid range and towards the upper end of the range. 13. It is additionally aggravated by the fact that the offence occurred in the home of the victim and because of the extremely young age of the victim. 14. The police were swiftly informed on two occasions close to the date of the offending, but (for some undisclosed reason) they chose not to act. Therefore, your criminal misconduct went undetected for very many years. In fact, you were not arrested in relation to this offence until 15 August 2018. 15. In the intervening years, you were prosecuted for offences against other children. You were sentenced in the Supreme Court in connection with those offences by Grove J on 14 July 1988. 16. It is significant to note that in his Honour's remarks on sentence there is no reference to you having any underlying mental health condition which his Honour was asked to take into account. 17. I make that observation because your counsel has submitted that, because of the delay in the prosecution of you for this matter, you may have lost the benefit of some expert advice concerning potential mental health issues at the time of your offending. In my view, if there had been any relevant mental health issues in the 1970s and 80s, they would have likely been flushed out in the proceedings before Grove J. 18. Your attitude to the offending is concerning. Today is the 28th listing of this matter in this Court following your committal for trial from the Local Court on 5 June 2019. You finally pleaded guilty to the charge on the fourth trial date, which had been fixed for hearing on 20 June 2022. On the next day, 21 June 2022, you entered a plea of guilty, at which time a sentence hearing date was fixed for 16 September 2022. 19. On that date, the matter was allocated to me. I was concerned that when you entered the plea of guilty, the list judge may not have entered a conviction. To regularise the matter, I rearraigned you. When you then pleaded guilty, you made the point of stating that it was for convenience only. 20. This non-acceptance by you of your criminality was not confined to your response upon your entering your plea on that occasion. You denied your criminality when you were interviewed for the sentencing assessment report, which was placed in evidence before me. You asserted that the complaint against you was a complete fabrication by police. 21. Your denial of acceptance of your criminality has not been confined to these proceedings. Reference to Grove J's remarks on sentence will disclose that, even back in 1988, you were not fully accepting of the nature of your criminal misconduct. 22. Because of your very late plea of guilty in the proceedings before me, you will receive a 5% discount from the sentence which will be imposed. 23. You did not give evidence in the sentence proceedings 24. The subjective material placed before the Court is modest. In this context, I earlier mentioned that this was the 28th occasion that these proceedings had been listed in this Court. I shall not set out in detail all of the occasions when the matter was before the Court, but a perusal of the court outcome sheets will reveal that there were very many occasions when you, through your legal advisers, were given the opportunity of obtaining expert medical reports. There were occasions when Dr Milder's report was expected. He is a neurologist. No report was ever filed and served. There were occasions when Dr Susan Hayes' reports were said to be being prepared. They never filed and served. There was an occasion when Dr Pulman was going to prepare a report. It was not filed and served. In the years between 2019 and the fourth trial date in June 2022, there were many opportunities for medical evidence to be obtained for various purposes - fitness hearings and the like. 25. When the matter came before me for sentence on 16 September 2022, (that being the 25th occasion the matter had been before the Court) you had been ordered by the list judge on 21 June 2022 to file and serve all of your expert reports by 9 September 2022. There was therefore almost three months for that evidence to be obtained. When the matter came before me on 16 September 2022, that order of the Court had not been complied with. There was no expert material available for the sentence hearing on that date, notwithstanding the very long period of time that the matter had been in the court's list. There was no satisfactory explanation on 16 September 2022 as to why the Court's order had not been complied with. 26. With very considerable reluctance, I adjourned the sentence hearing on 16 September 2022 to today, not least because I was told, in unambiguous terms, that, if I did so, Dr Leonie would provide a report. I was told that she could not see you for eight weeks from 16 September 2022. I was told it would take her six weeks thereafter for her to prepare her report. And, with that information, the matter was fixed for hearing today. There is no report from Dr Leonie. There is no medico-legal report from anybody - other than what has been accumulated for the purposes of fitness hearings a very long time ago. 27. From the very limited material before me, I am satisfied on the balance of probabilities of the following. 28. You are now 74 years of age. You have serious physical issues arising from Parkinson's disease, which has greatly inhibited your quality of life in recent years. You have a depressive state arising from those physical conditions. 29. You were a hard worker when you were in the workforce. 30. Your personal life was a fractured one. There is no real information about your childhood before me. You had some relationships with some women, from which children were born, but you have no meaningful relationship with the children or your former partners. You have some connection with your brother and sister-in-law, but that would seem to be the extent of your social interaction. 31. You have no issues with illegal drugs or alcohol. 32. But you have never faced up to the fact that you have a sexual interest in children, not even today. 33. Whilst it is true that you have not offended since you were sentenced by Grove J, that is not evidence of rehabilitation. It is merely evidence, at best, of non‑offending. 34. Rehabilitation, amongst other things, requires an offender to express genuine remorse for his offending; to have insight into his offending; and to have taken appropriate steps to overcome the source of the offending. That is not you. There still remains, in my view, a possibility of further offending, albeit slight. 35. A matter of real significance in this case is the delay between your offending conduct and when you were arrested in 2019. None of that delay can be attributed to you. Rather, the reason for the delay can quite fairly be placed at the feet of the police, who were told on two occasions of your criminal misconduct and who chose (for whatever reason) not to act. 36. As your counsel has submitted (and the Crown has joined in that submission) this delay over very many years, when you have already been to prison for sexual offences in the 1980s, requires considerable leniency to be extended to you, leniency that you would otherwise not be entitled to, even having regard to your physical and mental condition. 37. No sentence other than a term of full-time imprisonment is appropriate for you. 38. Except for the issue of delay, Mr Page, and excluding the discount for the plea, I would have sentenced you to a term of imprisonment of three years and three months. Taking into account the issue of delay, before the discount of 5%, I would have sentenced you to a term of imprisonment of two years and six months. Because of the discount of 5%, the term of imprisonment will be two years and four months. It will date from today. 39. Because of your health conditions which will make imprisonment harder for you, even if you are treated in the prison hospital system, I make a finding of special circumstances to reduce the non-parole period from the ordinary 75% to 50%. Therefore, I fix a non-parole period of one year and two months to date from today and which will expire on 11 February 2025. I fix a balance of one year two months to date from 12 February 2025 and which will expire on 11 April 2026. 40. I direct that the collection of documents filed on your behalf today, being exhibit 2, goes with the warrant. 41. You will now go with the officers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2023