R v ENDICOTT [2011] NSWDC 10

District Court New South Wales

Medium Neutral Citation: R v ENDICOTT [2011] NSWDC 10 Hearing dates: 17 February 2011 Decision date: 17 February 2011 Before: Berman SC DCJ Decision: Sentenced to an overall term of imprisonment consisting of a non parole period of 12 years and a total term of 16 years Catchwords: CRIMINAL LAW - Attempting to strangle with intent to enable to commit a serious indictable offence - aggravated break enter and commit serious indictable offence - Assault occasioning actual bodily harm - Consistent deviant sexual behaviour - Form 1. Legislation Cited: Crimes Act Category: Sentence Parties: The Crown Elmer John Endicott Representation: P Winch - Offender Director of Public Prosecutions Legal Aid Commission File Number(s): DC 2009/251463 Publication restriction: There is to be no publication of any material which will identify or tend to identify the victim.

SENTENCE 1HIS HONOUR: The offender Elmer John Endicott is now sixty-five years of age. A few years ago he was diagnosed with cancer. The material suggests that given the stage at which his cancer was detected, his prospects of surviving five years are about sixty per cent. The sentences I must impose upon him will necessarily by lengthy because of the objective gravity of what he has done. There is therefore a significant risk that the offender will die in gaol. That is a consequence of the seriousness of his behaviour. The elderly and the ill do not have licence to commit crimes and when they are detected doing so they cannot expect their age or illness to prevent appropriate sentences being imposed upon them. This is one such case. 2The offender has a long and clearly demonstrated history of deviant sexual behaviour, usually involving children, and usually involving the commission of very serious crimes. As long ago as 1969 he committed an offence and was declared a forensic patient. Then after his release from custody in late 1984 and early 1985, he began a series of offences which had the effect of terrorising a whole neighbourhood. He would break into a home in which children were living, and then sexually assault those children in horrible and disgusting ways before leaving. He even had the audacity and the brazenness to commit offences against the same victim on repeated occasions. For those offences he was sent to gaol and dealt with by Grove J in the Supreme Court of New South Wales. He received a lengthy sentence but because this was in the days before the Sentencing Act , upon the commencement of that Act his sentence was recalculated and he was eventually released. 3He continued however to be a forensic patient and was monitored whilst in the community. His behaviour was subject to some restrictions including a curfew. But the monitoring and the curfew did not prevent the offender committing the most serious offences for which I must now sentence him. 4In the early hours of 14 November 2009, despite the offender's curfew condition requiring him to be at home, he left his home intent on committing the very sort of offence that he ended up committing. There was obviously some substantial planning involved because when he left his home he carried with him a bag containing a large kitchen knife, a pair of stockings, a pair of gloves, a small torch, a screwdriver, scissors, cloth, medical tape, brown bandages and other items. In fact the possession of some of those items appears on a Form 1 attached to one of the offences which the offender must be specifically sentenced. 5When he got to the victim's premises, he took the knife out of his bag. He was thus prepared for any trouble. He opened a door and entered the house. It was at this stage that he disguised himself by putting a stocking over his head - that represents another offence on the Form 1 - and he put the gloves on as well. He then took a child's pair of underpants from a washing rack, presumably taking these as some form of souvenir, given what he knew he was about to do. 6He wandered through the house looking into various rooms before he saw a six year old boy asleep in his bed. With the knife in one hand, he put his other hand around this young boy's throat and began to strangle him. That is an offence, of attempting to strangle with intent to enable himself to commit an indictable offence. The indictable offence that he was going to commit was one of having sexual intercourse with a child under the age of ten. The seriousness of that offence is obvious. It is one of the most serious offences that can be committed, carrying with it a maximum penalty of twenty-five years. 7Very bravely, the young boy managed to scream and rolled onto the floor. The offender ran from the room. The boy's screams woke his parents, they ran into the hallway and saw their son holding his chest and neck screaming, "There's a man, there's a man in my room." The offender and the young boy's father collided in the hallway as they ran in separate directions. The father ran after the offender, tackled him outside and held him to the ground. Police were called. They found the offender in the custody of the father and found next to him the incriminating items that I have referred to. 8He was interviewed by police soon afterwards. Although he admitted going to the house with the knife, he denied many other aspects of his behaviour that he now, through his pleas of guilty, admits. In particular, I repeat, he admits that the purpose of him strangling this young boy, a boy of six years of age, was so that he could have sexual intercourse with him. 9The other substantive offence is an offence of aggravated break and enter and commit serious indictable offence. The circumstance of aggravation is that the offender was armed with an offensive weapon, namely the knife that I mentioned and the serious indictable offence committed was an offence of assault occasioning actual bodily harm because the young boy was found to have sustained substantial bruising from being strangled by the offender. 10Quite appropriately, the Crown tendered to me material setting out the circumstances of the offender's crimes in late 1984 and early 1985. The similarities between the behaviour then and the behaviour in 2009 are very disturbing indeed. They suggest, most obviously perhaps, the need to impose a sentence upon the offender which personally deters him from committing further offences of this kind in the future should he ever be in a position to do so. They also suggest that there is a substantial risk of the offender committing similar offences in the future. Of course the law is that I cannot impose a longer sentence than objectively appropriate because of the potential future dangerousness. But it is nevertheless a matter which I am entitled to take into account and which I do. 11The offender's history is one which reveals, as I said before, consistent deviant sexual behaviour, usually involving children, but on occasions involving adults such as when he attempted to sexually assault his cell mate whilst in custody. As might be expected, as a forensic patient he has been seen by many psychiatrists and psychologists over the years. The most recent report suggests that there is no evidence of psychotic or mood disorder but there is consistent evidence of an antisocial personality disorder. There is consistent evidence of paedophilia as well. The prospects of the offender's rehabilitation are very poor indeed. 12The offender is currently on protection awaiting sentence. Although given the nature of his offending it is probable that the offender will remain on protection for the entirety of his sentence, it is no longer the case that it is automatically assumed that the conditions of his custody will be harsher than those in the general prison population. There is a risk I suppose that they will be. But it is difficult to take that risk into account in any significant way given the various ways in which prisoners, whether on protection of not, serve their sentences. To put matters bluntly, even in the general prison population the conditions of custody vary enormously. 13Consistent with the offender's past he has expressed no remorse at all for his offending. Certainly his pleas of guilty are not evidence of remorse. He was caught red-handed by the young boy's father. The pleas of guilty of course do have a utilitarian benefit and so I will discount the sentences I would otherwise would have imposed by twenty-five per cent to reflect that circumstance. 14The harm that the offender has caused as a result of these offences is obvious, foreseeable and substantial. The harm that the offences caused is a very important part of the decision as to what sentence to impose upon an offender. I will bear in mind the harm that the young boy has suffered and will continue to suffer in the future, when I decide what sentences to impose upon the offender. 15Because the aggravated break and enter offence has a standard non-parole period, I am required to make an assessment of the objective gravity of that offence with some particularity. My task has been made easier by a concession made by Mr Winch who appeared for the offender, that both offences involved objective gravity significantly above the middle of the range, I do make that finding. Indeed rather than looking at the standard non-parole period a better guide to the appropriate sentence to be imposed is perhaps the maximum penalty. That is of course not to say that these are offences are of the worst kind, but it most be borne in mind that in this case the standard non parole period is but a quarter of the maximum penalty (as opposed to other standard non parole periods where the standard non parole period is a much more a significant proportion of the maximum penalty). 16Mr Winch also concedes that I would not be making a finding of special circumstances. He quite accurately recognises that given as he put it, "the numbers involved" , he could not reasonably ask me to make a finding in the offender's favour. The only finding of special circumstances that I will make arises because of the partial accumulation of the two sentences and the need to preserve the statutory ratio in overall terms. The sentences that I impose are as follows. 17For the offence of aggravated break and enter, the offender is sentenced to imprisonment, I set a non-parole period of six years, to commence on 14 November 2009 and an overall term of eight years. For the offence of attempting to strangle within intent to have sexual intercourse with a child under ten. Taking into account the matters on the Form 1, I sentence the offender to imprisonment. I set a non-parole period of ten years to date from 14 November 2011 and an overall term of fourteen years. This means that the offender is eligible to be released to parole on 13 November 2021, the overall sentence being one consisting of a non-parole period of twelve years, the period of eligibility for parole of four years, making a total sentence of sixteen years imprisonment.