R v Lloyd [2012] NSWDC 184

District Court New South Wales

Medium Neutral Citation: R v Lloyd [2012] NSWDC 184 Hearing dates: 12 June 2012 Decision date: 12 June 2012 Before: Berman SC DCJ Decision: Sentenced to an overall term of imprisonment consisting of a non-parole period of 18 months and a total sentence of 3 years Catchwords: CRIMINAL LAW - Sentence - Historical child sexual assault - delay in sentencing Cases Cited: Ritter v Regina [2012] NSWCCA 121 Category: Sentence Parties: The Crown Bryan William Lloyd Representation: Mr Hardman - Crown Mr M Preece - Offender Director of Public Prosecutions Connolly Legal - Offender File Number(s): 2010/372284 Publication restriction: There is to be no publication of the names of the complainants or of any material which may tend to identify them

SenTENCE 1HIS HONOUR: Appearing for sentence today is Bryan William Lloyd. He pleaded guilty on 5 October last year to five offences, all of them committed many years ago. They are offences of great seriousness, involving the sexual assault of two young boys, brothers A and B. 2Before I proceed any further, I should make an order that there is to be no publication of anything which would identify or tend to identify the names of the complainants in this matter. 3Sentencing for offences that occurred so long ago, particularly child sexual assault offences, provides particular problems, one of which is in determining the sentences that would have been imposed had there not been the substantial delay which often exists between offence and sentence. The authorities tell us, as sentencing judges, that we are to sentence according to the sentencing regime and tariff that existed at the time, rather than at present. 4There is much to be said for the view that in one sense that fails to take account of what is now more understood about offences of this type. Mason P, although he was in the minority as regards this aspect of the way offences of this kind should be dealt with, said that to sentence according to the regime that existed at the time is to perpetuate the error which has now been identified in sentences imposed many years ago. But, of course, he was in the minority and it is my task to seek to identify what would have happened to Mr Lloyd had he been dealt with soon after he committed these offences, taking into account, of course, that in the intervening years he has led a life where none of these offences have been repeated. 5The offences occurred after A and B became involved in activities at the Windale Police Citizens Youth Club. The offender was an attendee and a volunteer at that club. He turned twenty-three in 1989. In that year A was twelve and then thirteen and B turned twelve. There was thus a significant disparity in their ages. Although the offender was still relatively youthful, he was an adult and in a position of responsibility within the club. Both the young boys were entitled to look towards Mr Lloyd to care for them and protect them. Instead, he took advantage of his position to abuse them. 6It was the practice of some people involved with the club to sleep overnight when there were activities occurring over the weekend. The offender and A on one occasion slept overnight, sleeping on mattresses in one of the squash courts. A went to sleep fully clothed. The offender was on a mattress beside him. During the course of the night A was woken by what he described as a tickling sensation to his upper thigh. He had been asleep. The offender had taken advantage of that to molest A by sucking his penis. 7A realised what was happening, he realised that his pants had been pulled down and that the offender was sucking his penis and pretended to be asleep. The offender continued until A ejaculated. They both went back to sleep after A went to the toilet and cleaned himself up. Nothing was said about this incident between them the next morning. 8On another Saturday night a similar thing occurred. Again A woke up to find his erect penis being sucked by the offender. It continued again until A ejaculated and once more they both went back to sleep. 9These were not isolated matters. Although the offender is to be sentenced, of course, for these two matters only, he cannot say that they were isolated in the sense that they were the only two occasions on which acts of this kind occurred. The statement of facts reveals other matters. 10A then ceased to be involved in the PCYC. 11Other activities within the club included fishing. The two young boys went fishing with the offender and a friend of his to Swansea and they camped overnight in two small tents. B went to sleep in one of the tents and woke to find the offender lying close beside him. He became aware that his shorts and underpants had been pulled down and he could feel something in his bottom. When he pulled away the offender asked him why he did that. B pulled his clothes up and went back to sleep. 12After that the offender began touching B on his penis whenever they were at the PCYC, whenever they were alone. The incidents that I have just described are not the subject of specific charges on the indictment. What I will now describe is. 13One day the offender took B into what is described as "the band room". He closed the door behind them and he pulled B's shorts and underpants down. He got B to lie on his stomach over some gym equipment and he tried to put his penis into B's bottom. B describes a sticky sensation and the offender pushed his penis in and out of his bottom for a short time. That is an offence of sexual intercourse with a child between the ages of ten and fifteen. As I said before, B was twelve at the time. 14Similar anal intercourse took place on many other occasions, sometimes in the toilet block at the football oval in Windale. On one of those occasions, the subject of count 4 on the indictment, the offender and B had been fishing until just on dark. They went back to Windale and the offender went to his home for a short time before driving B to the toilet block. They went inside and the offender smeared Vasoline on his penis before pulling B's pants and underpants down. B bent forward and the offender put his penis in B's bottom, pushing it in and out for a short time. After he was finished he drove B home. 15Of course, given his age and given the activity that I have described, not surprisingly, most times B felt pain in and around his bottom for the night and into the following day. 16B tried to put some distance between him and the offender but the offender was not going to let that happen. He told B that what had happened was not going to happen any more and that they would just go fishing. It appears that B, believed him but he should not have. 17On one occasion, the subject of count 5 on the indictment, they fished at Belmont. Once more, they drove back to Windale and once more the offender went to his house before driving to the toilet block. Inside the toilets the offender put Vasoline on his penis, pulled his underpants and pants down and bent B forward, again having penile anal intercourse with B before driving him home. Count 5 represents the last occasion there was any sexual contact between the two. 18It was not until very many years later that the matters were drawn to the attention of the police. Ultimately A, in circumstances that he outlined in his moving victim impact statement which he read to the court, went to police on 19 March 2007. The police then approached B who made a statement in March 2009. By now the offender had moved to Queensland. He was approached by police in November 2010 and told that allegations of this kind had been made against him. The offender was then charged. 19The offender is a very different person now to the one he was back in the late 1980s and early 90s. He had a good upbringing with a family that was close and remains close. Indeed, references were tendered today from many of Mr Lloyd's family members. Notwithstanding that the family members now know about what he did many years ago, he retains the support and love of his family. 20There is nothing surprising about Mr Lloyd's upbringing as regards his education and work history. Indeed, he appears to have applied himself to employment with some enthusiasm after leaving school at a relatively early age. 21However, there was one particular aspect of his upbringing which was abnormal. At about the age of thirteen he was sexually abused by a paternal uncle. He felt unable to tell his parents about this for both emotional and financial reasons. That experience appears to have been attributed, by him at least, as a cause of him commencing to use drugs and specifically cannabis, although, as the psychologists report, that the misuse of that substance was modelled and encouraged by the offender's then peers. His academic performance suffered and he ultimately left school. He has offences on his criminal history relating to cannabis use from around that time. 22A very positive thing, however, happened in 1990 and that was when he met his now wife. She and the offender have had a close and loving relationship for many years. She was aware of the offender's cannabis abuse and was important in him ultimately giving it up. She stood by him over the years as he provided further challenges, at one time taking up gambling with some enthusiasm but she remains supportive of him and gave evidence on his behalf today. 23They have three children. One of them has recently undergone some tests in relation to what may turn out in the future to be a form of cancer. Although he has experienced symptoms for many years, medical investigations were only undertaken recently and they are not complete. The diagnosis at this stage is unknown. There is, however, a possibility, which everyone fears, that the diagnosis may ultimately be one of cancer. At this stage we simply do not know what the outcome will be. 24I mentioned before that A had read his victim impact statement to the court. It spoke eloquently of the sort of harm that offences of this kind cause. Indeed, the consequences that A spoke about are entirely predictable. In fact, it is a growing awareness of the harm that is caused by offences of this type which has led to a significant increase in penalty, both imposed by the courts and provided for by the legislature over the past thirty years. 25No victim impact statement was tendered by the Crown in relation to A's brother B but, of course, that does not mean he has not been harmed; far from it. 26Of course, part of the harm that A has experienced and part of the problems he has had with his life over the years is due to the position he was in when he first went to the PCYC. He was at that time being sexually abused by his step-father. 27One of the most important aspects in determining the culpability of the offender would concern whether he was aware that A was being molested by his step-father at the time he, the offender, sexually abused him. There was a somewhat surprising episode during these sentencing proceedings concerning that aspect. 28Mr Preece who appears for the offender conceded that the facts revealed that the offender had such knowledge. When I was unable to identify the relevant passage in the statement of facts that had been tendered by the Crown, it became apparent that Mr Preece was reading from a document which differed from the one which was tendered. The one I had, the one which had been tendered, was silent on this aspect. 29The upshot was that it was agreed between Mr Preece and the Crown that I should sentence on the basis of the facts that had been tendered and ignore what was put by Mr Preece, suggesting that the offender had the relevant knowledge. 30Of course, I will do precisely that. I will sentence on the basis of the evidence and I repeat "evidence" that is put before me. I will not take into account what Mr Preece read to me from his document. I cannot let the matter pass, however, without commenting on this state of affairs. 31Charge bargaining is an important part of the criminal justice system, allowing matters to be dealt with efficiently. Indeed, were it not for charge bargaining there would need to be many more judges and many more courts. But the public is entitled to be concerned at what sometimes occurs. 32It is one matter for negotiations as to appropriate charges to be had between the parties, but where those negotiations extend to misleading the sentencing judge things are of an entirely different character. Judges continue to be concerned about agreed facts where guns disappear, people act alone rather than in company and, in this case, a judge is not told about the very important aspect which would otherwise affect the moral culpability of the offender. 33I repeat, none of what I have just said will influence me in the sentence I will impose upon the offender. It is to be hoped it influences others, however, in the way they approach charge bargaining. Judges continue to be concerned at being kept in the dark, or indeed even misled, about what has actually occurred when they come to sentence. 34I turn now to one of the most important aspects which will determine the appropriate sentence to impose in this case. It concerns, of course, the delay between the offending and the present day. 35I must sentence the offender for the person he is today. He has demonstrated that since the last of these offences he has changed considerably and he is no longer the man he was when he committed these offences. He is not just promising rehabilitation, he has demonstrated it in a very concrete way. He has led a blameless life for many years and is entitled to be proud of what he has achieved. He is entitled to take advantage of the significant delay in that way. 36The authorities often speak about a significant measure of leniency being extended to the offender in circumstances such as these. On the other hand, as the Crown pointed out, this is a case where the offender, apparently for many years, was able to put these matters behind him. It is not a case that the offender lived in fear of the knock on the door, which would lead to this day ultimately arriving. 37He got on with his life and lived it happily, marrying his wife and having three children who clearly love him. 38In determining the moral culpability of the offender I do take into account how the offender was at the age of twenty-three. As I said, he himself had been abused and he himself was abusing cannabis. These two circumstances led to him being less able to reason about the rightfulness and wrongfulness of his conduct than would otherwise be the case. 39Although the offender has continued to suffer from dysthymia over the years, he is, as I repeat, a very different person now to the person he was back then. He has recently had some physical and mental difficulties. As far as his physical health is concerned he has had a few problems which have been put before me. In particular he suffers from sleep apnoea and suffered from a mini stroke a little while ago. He has had the odd injury as well. Mentally, I mentioned dysthymia and a problem with gambling. He will do his time in custody harder because of those two circumstances. 40There are other circumstances which suggest that the offender will do his time in custody harder than he would in the general prison population as well. Mr Preece tendered some extracts from Facebook, in particular what appeared to be the Facebook page of A. In it A alludes to the possibility of the offender being harmed whilst in custody. I mention the following circumstance only to put this matter into context. A has done time in prison and therefore the threats that appear in the Facebook page might be thought to have some additional weight because of that circumstance. 41The offender will no doubt feel at least apprehensive about serving a sentence of full time custody because of the contents of the Facebook page and the identity of the person whose Facebook page it was. Allied to that is the circumstance that there is a real risk that the offender will serve a sentence of full time custody on protection and if he does, there is a real risk also that the conditions of custody will be more onerous than those in the general prison population. 42It is hard to be more definitive than that. I heard evidence from a corrective services officer Darren Wells about the differing levels of protection and the various consequences for an offender of serving a sentence on protection in various gaols around the state. As the authorities tell me, I take into account, as I have said, the risk that he will serve his sentence on protection and the risk that this will involve conditions of custody which are more onerous than those in the general prison population. 43Whilst dealing with that matter I will speak again about the health issue that faces the offender's son. He will of course prefer to be with his family at such a difficult time. A sentence of full time custody would be more onerous for that reason as well. The offender will know that through his actions many years ago he has deprived his family and in particular his son of his support as the investigations into his son's health continue. 44I was provided with what were said to be comparative cases by both Mr Preece and the Crown. The Court of Criminal Appeal, or at least the majority, in Ritter v Regina [2012] NSWCCA 121 and in other cases has referred to appeals where counsel rely on a limited number of cases and seek to derive from those cases sentencing principles and tariffs. No two cases are alike, of course. That point has been made on many occasions and although the cases that both the Crown and Mr Preece gave me were helpful, I have to bear in mind that the charges were different, the facts were different, the offenders were different and ultimately out of all those cases which could have been provided to me I was given only nine. Although, as I said, I do find them helpful, I also rely on the maximum penalty as indicating the appropriate sentence that should be imposed for an offence and offender in the worst category of offending and my own instinctive synthesis as to the appropriate sentence guided as it is by my experience of the criminal law way back in the late eighties and early nineties. 45The offender as well as demonstrating good prospects of rehabilitation, and being unlikely to re-offend, expressed his remorse. Those expressions appear in the psychologist's report tendered today. There is one qualification to that and that concerns the offender's late plea of guilty. It would have been better for the offender to have admitted what he had done earlier, but I do not regard that as significantly affecting my conclusion that the offender is sorry for what he has done. Of course, the plea of guilty coming late nevertheless still has a utilitarian value and I will reduce the sentence I would otherwise have imposed by about ten per cent to reflect that circumstance. 46There are five offences for which the offender must be sentenced involving two complainants. It is accepted that there should be a level of accumulation. I will do that. I will accumulate the sentences involving B partially on the sentences involving A. Indeed I could have accumulated to a greater extent as well and were I not told by the authorities to extend as much leniency as possible to the offender because of delay, I would probably have done so. 47Both complainants are entitled to think that having committed one offence, the offender is not being punished for any other offence involving the same complainant. In one sense that is true, but applying the principle of totality I am satisfied that the outcome I will now announce is the appropriate one. 48It is undeniable that it is a significant punishment to send a person to gaol for any period of time at the age that Mr Lloyd now is, but nevertheless that is a necessary outcome given the gravity of his conduct even in circumstances where since then he has led a blameless life. The Crown did not oppose a finding of special circumstances. 49The sentences I impose are as follows: 50For counts 1 and 2 I impose a sentence of imprisonment of a fixed term of 18 months to date from today, 12 June 2012. On counts 3, 4 and 5 the offender is sentenced to imprisonment. I impose a non-parole period of 12 months and a period of eligibility for parole of 18 months to date from 12 December 2012, the non-parole period will expire on 11 December 2013 on which day the offender is to be released to parole. 51The overall sentence consists of a non-parole period of 18 months and a total sentence of three years.