R v Martin HARMATA [2013] NSWDC 214

District Court New South Wales

Medium Neutral Citation: R v Martin HARMATA [2013] NSWDC 214 Hearing dates: 16 September 2013; and, 17 September 2013 Decision date: 26 September 2013 Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of seven years. Non-parole period of three years six months, to commence on 11 July 2013 and expire on 10 January 2017. Balance of three years six months commencing 11 January 2017 and expiring 10 July 2020. Catchwords: Approach to sentencing historical child sexual assault; low level abuse can lead to catastrophic results for victims; unsatisfactory preparation of facts for sentence; disputed facts should either not be placed before the Court or be the subject of a contested hearing in the sentence process Legislation Cited: Crimes Act 1900 Cases Cited: MPB v R [2013] NSW CCA 213; Dousha v R [2008] NSWCCA 263; AJB v R (2007) 169 A Crim R 32; and, PWB v R [2011] NSWCCA 84 Texts Cited: The Royal Commission into Institutional Responses to Child Sexual Abuse Category: Sentence Parties: Regina (Crown) Martin Harmata (Offender) Representation: Crown: Mr Ellis (Trial Advocate) Offender: Mr Simpson of Counsel File Number(s): 2012/352551; 2012/552555; and, 2013/37904 Publication restriction: The names of the three victims (MD, SC, SW); and, the names of Mr P and Mr W.

Judgment 1On 16 September 2013 Martin Harmata appeared for sentence in relation to four offences he committed in 1985 and 1987. One of those offences involved a contravention of the then s 61E (1) of the Crimes Act, that is indecent assault on a person under the age of sixteen years. The victim of that offence was MD. The other three offences involved contraventions of the then s 61E (1A) of the Crimes Act, that is indecent assault on a person under the age of sixteen and under authority. The victim of two of those offences was SW; the other victim was SC. 2To the extent necessary, I re-confirm the non-publication orders previously made about the names of those three gentlemen. 3In addition, Mr Harmata has asked me to take into account one matter on a Form 1 which I have certified in relation to the first offence involving SW. 4At the time these offences were committed the maximum penalty for each offence was six years imprisonment. 5I shall shortly set out the facts surrounding these offences and the matter on the Form 1. Before doing so, however, there are some preliminary observations I wish to make. 6The matters now before the Court, as I have stated, occurred in 1985 and 1987. Mr Harmata was arrested in relation to those matters in early 2013 and committed for sentence to this Court from the Local Court on 24 May 2013. The law applicable to these matters has altered substantially in the intervening years - in some respects adversely to offenders, in other respects beneficially. By way of example, the offences have been redefined, the effective maximum penalties have been increased, the ratio between the non parole period and the head sentence has been increased, remissions have been abolished and a substantial discount for an early plea of guilty has been firmly established. 7In this context I note what Garling J said (with whom R A Hume J agreed) in MPB v R [2013] NSW CCA 213 at [105], "...the pattern of sentencing which existed in the 1970s and 1980s for sexual offences against children was such that the sentences were shorter than those which would be imposed now for equivalent offending." 8Sentencing Mr Harmata in 2013 for offences he committed in 1985 and 1987 involves the consideration of principles which have been the subject of conflicting decisions in the Court of Criminal Appeal, particularly as to whether or not in formulating the appropriate penalty the contemporary sentencing judge can take into account not only the then applicable statutory maxima, but also the then appropriate sentencing patterns - or "the tariff" as it is sometimes crudely put. Even as recently as 19 September 2013 this issue has received divided judicial opinion in the Court of Criminal Appeal as the decision in MPB v R to which I have just referred identifies. In that decision, the majority held that a sentencing judge can take into account appropriate sentencing patterns but only where that judge has, "...a clear picture of what those earlier sentencing patterns and practices were" (See Garling J at [82]). 9His Honour went on to say at [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 charged. 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 maximum penalty fixed by the legislation." 10I intend to say something more about past sentencing practices for offences against children later in these remarks. 11At all relevant times Martin Harmata was a teacher at the Patrician Brothers College at Blacktown. He was also a professed member of the Patrician Brothers Order within the Roman Catholic Church. He began his novitiate in 1974 and finally professed in December 1982. In 1985 he was 32 two years old. 12MD was a student at the Patrician Brothers College Blacktown between 1984 and 1989. 13In 1985 MD was in Year 6, 11 years of age and a member of the school Under 12 rugby league football team. Although Mr Harmata was a teacher at the school at that time, he did not teach students in Year 6. He taught in the senior high school classes, that is Years 7 to 10. He was also the teacher responsible for formal sex education at the school. As I shall reveal, Mr Harmata was an entirely inappropriate person for such a delicate task. 14During 1985 Mr Harmata started to talk to MD during class breaks in the junior high school playground. 15One afternoon in 1985, after school, MD attended football training at the school athletic oval. He got into an argument with one of the other members of the team and he was punched in the face. As a result he did not take any further part in training that afternoon, but sat at the side of the oval some distance away from where the team was training. 16Whilst he was sitting at the side of the oval, Mr Harmata approached him and spoke to him. MD told Mr Harmata about the argument. They then walked away together towards the school's hydragym, which was a small gym containing fitness equipment which was off limits to students without teacher permission. When not being used it was locked. 17As they approached this gym, Mr Harmata said to MD, "Let's go check you out". Mr Harmata unlocked the gym and he and MD entered. Mr Harmata then shut the door behind them. I have no doubt it was selected by Mr Harmata because it was highly unlikely anybody else would go there. This was, however, a mostly opportunistic offence. 18Mr Harmata sat on a chair and MD stood in front of him facing him. Mr Harmata said, "Let's have a look at you. Get your shirt off". MD took his shirt off. Mr Harmata then felt all over his upper body with his hands. In the process he squeezed MD's stomach, chest, shoulders and arms. Mr Harmata then turned MD around so that MD was facing away from the offender. Mr Harmata pulled down MD's shorts and underpants to his ankles. Mr Harmata then continued to feel MD. He squeezed his legs, both on the inside and the outside, starting at the upper part of one leg and working his way down. He then did the same to the other leg. 19Mr Harmata then felt MD's buttocks. He then reached around and touched MD's penis. He squeezed MD's penis and testicles using the whole of his hand. 20Whilst Mr Harmata was still touching him, MD pulled up his underpants and shorts. He said, "I've got to go. I've got to get a lift home with my dad". MD then put on his shirt and left the gym. 21It is these facts which constitute the offence of indecent assault on a person under sixteen years. 22SW was a student at the Patrician Brothers College Blacktown, between 1984 and 1990. 23During 1987 SW was in year 7 and twelve and thirteen years of age. During that year Mr Harmata was SW's home room teacher. He also taught SW as a substitute teacher. 24Mr Harmata had a habit of carrying a popular confectionary known as Minties in his trouser pocket. Quite wrongly he would allow students to put their hands into his trouser pocket to retrieve a Mintie. He was widely known amongst the students as 'the Mintie Man'. 25During a recess period one day in 1987, SW was with friends in the school playground. Mr Harmata was also present. SW reached into Mr Harmata's trouser pocket for a Mintie. On this occasion, however, Mr Harmata held SW's hand when it was inside his pocket by grabbing it from the outside of his pocket. Mr Harmata shook SW's hand whilst it was inside his pocket, causing SW to touch the offender's penis. SW pulled his hand away. This is the matter on the Form 1 which is to taken into account with the indecent assault matter to which I shall now refer. 26On a Thursday during 1987 SW arrived at school at about 8am. He entered the quadrangle area of the school and was approached by the offender. The offender said, "Sit down, we will have a chat", SW and Mr Harmata then sat together in the playground. 27Mr Harmata said, "Do you have a girlfriend?" When SW said that he did, the offender asked, "Have you had sex with her yet?". He then said to SW, "If you need any tips let me know and I will show you". Such a conversation with a 12 or 13-year old boy by an adult is, to say the least, highly inappropriate. When it is undertaken by a school teacher who is also a member of a Catholic order, it is outrageous. 28As the offender said this, he grabbed SW's leg and rubbed it towards SW's groin area. SW felt uncomfortable and got up and walked away. This is the first offence of indecent assault of a person under the age of sixteen years and under authority and the offence in respect of which the matter on the Form 1 is to be taken into account. The facts disclose a degree of planning by the offender, although at a very unsophisticated level. But then considering the circumstances, it did not need to be very sophisticated for the teacher to exploit the child. 29On a number of occasions between the beginning of August and the end of September 1987, SW volunteered with other students to assist the cutting of grass on the football field within the school grounds. This occurred after class had finished for the relevant day. 30When this activity occurred students were supervised by the school groundkeeper, an English teacher, and this offender. 31One day in this period after SW and the other students had completed cutting the grass, SW was walking out of the school grounds. He was alone. It was somewhere between 3.30 and 4.45pm. 32As SW was leaving the school grounds he was approached by Mr Harmata who said, "Sit down and we'll have that talk". SW and Mr Harmata then sat on seats in the playground. After some initial discussion Mr Harmata grabbed SW's leg around the top of the thigh. At about this time another teacher walked by and the offender immediately removed his hand. 33After that other teacher passed by, Mr Harmata replaced his hand on the upper thigh of SW. He then rubbed SW's upper thigh in the area of his groin. As Mr Harmata was doing this, he asked SW if he was aware of where the offender resided. SW said that he was. Mr Harmata then said, "We will have to take you in there and show you around". I pause to observe that Mr Harmata has no recollection of this conversation but does not dispute that it occurred. 34Mr Harmata then removed his hands from SW's upper thigh and took hold of SW's right hand. He then placed SW's hand on his own groin. SW could feel the offender's erect penis. SW caused the offender to release his grip and he then walked away. 35This is the second offence of indecent assault of a person under sixteen years and under authority. The reference to "We'll have that chat" is also suggestive to my mind of a crude or simplistic level of planning. 36SC was a student at the Patrician Brothers College Blacktown, between 1985 and 1990. 37In 1987 he was in Year 7, aged 12 years and Mr Harmata was one of his teachers. 38One day between early October and late December 1987 SC was attending his French class. Mr Harmata approached the teacher, Mr W, in the classroom and spoke with him. Because there are outstanding charges pending against Mr W, I reconfirm the non-publication order I previously made concerning his name. 39Following that conversation Mr W told SC to accompany Mr Harmata outside. SC left the class and walked with the offender to the cricket nets that were located on the sports oval of the school. Unlike the other offences which appear to have been respectively opportunistic or had limited planning, this arrangement between Mr Harmata and Mr W smacks of significant collusion and planning between the two teachers. I should emphasise, however, that that comment is made on the basis of the evidence before me in this sentencing hearing. Mr W has not been heard in relation to that allegation. 40Mr Harmata then said to SC, "I need to talk to you about your sex education". Mr Harmata then instructed SC to walk behind the cricket nets with him. They both sat down. This was a secluded area which was out of bounds for all students within the school. This is a further indicator of planning by the offender. 41Mr Harmata spoke for a short time about general matters before asking SC about wet dreams. 42Mr Harmata then asked SC about attending the football with Mr P, who was another teacher at the school, some weeks previously. Mr P and SC had in fact attended a first grade rugby league game at the Sydney Cricket Ground. They had travelled to and from that game in Mr P's motor vehicle. I pause to observe that SC has made a complaint to police that on the journey home Mr P sexually assaulted him in that car. This matter has not yet been finalised and accordingly also reconfirm the non-publication order I previously made in relation to Mr P's name. 43SC asserts but Mr Harmata does not concede that following that the following conversation took place. 44Mr Harmata said, "Did you like what happened in Mr P's car?", SC said, "I don't know", Mr Harmata said, "Well sex can be fun and people who love each other have sex. You and me can have sex cause I love you and you love me. We have to get back to class soon. Quick I will show you how to do it". 45The Crown asserts that this conversation establishes that the offender approached the complainant because the offender was aware of information that indicated that SC was more vulnerable to indecent behaviour than other students at the school. Why this very significant fact was not the subject of a contested factual hearing was, in my respectful opinion, not satisfactorily explained in the sentence hearing. 46Although Mr Harmata does not accept this conversation took place, he does concede that he approached SC on this occasion because he formed the belief that SC was more vulnerable to indecent behaviour than other students at the school. 47What next follows does not appear to be disputed. Mr Harmata then undid his fly and showed SC his erect penis. Mr Harmata started to masturbate in front of SC. Mr Harmata then grabbed SC's hand and placed it on his erect penis. He held SC's hand and began to masturbate himself moving SC's hand quickly up and down on his penis. SC closed his eyes and started to cry. SC attempted to wriggle free but was unable to do so because of the strength of the offender's grip on his wrist. SC stood, kicked Mr Harmata in the shins and ran away, still crying. Once SC saw that the offender was not following him, he wiped away his tears and tried to calm himself. He returned to Mr W's class. 48This is the third offence of indecent assault of a person under the age of sixteen years and under authority - and the final of the four offences for which Mr Harmata is to be sentenced today. 49The Crown asserts but Mr Harmata does not concede that the following incident then occurred. 50At the conclusion of the French class conducted by Mr W, Mr Harmata came to that classroom and spoke to Mr W. Mr W instructed SC to remain in the room. After a short conversation together, Mr W and Mr Harmata approached SC. Mr W told SC he was to be punished for disobeying a teacher. Specifically, the complainant asserts but the offender does not concede that Mr W yelled "(SC), when Brother Martin or another teacher for that matter, tells you to do something, you do it. Get up here and put your hands out. You are going to be belted". 51Although Mr Harmata does not concede that this incident occurred, the Crown asserts that the offender used his authority at the school to cause SC to be punished because he ran away from the offender at the cricket nets. 52It does not appear to be in dispute, however, following this French class, after SC left it and returned, that Mr W struck SC two or three times on the hand with a strap whilst Mr Harmata watched. 53SC left the classroom. He did not tell anyone what occurred because he feared further punishment. 54As a result of these acts, SC suffered psychological trauma which manifested itself, physically, in a nervous twitch to his head. 55The manner in which the sentence hearing was conducted concerning the circumstances in which SC came to be belted by Mr W was not satisfactory. Specifically, there was no contested hearing as to the conversation between Mr W and SC in the presence of Mr Harmata resulting in the administration of punishment. It is unsatisfactory that the non-conceded incident to which I have just referred was placed before the Court in the way that it was. If there were no concession by Mr Harmata that it occurred, either it should have been removed from the Agreed Statement of Facts or there should have been a contested hearing on that factual issue. If proved beyond reasonable doubt, it would be a further aggravating matter. In the circumstances, I have no alternative but to disregard that aspect, that is, the non-conceded conversation. The fact of the belting by Mr W in the presence of Mr Harmata after SC fled from the secluded place where he was assaulted remains, however, a circumstance to be taken into account in assessing the objective criminality of this conduct. In this regard, leaving to one side the disputed conversation, I am satisfied beyond reasonable doubt that the only available inference is that SC was punished by Mr W in the presence of Mr Harmata because of his resistance at the cricket nets. 56A specific aggravating factor in relation to the offence committed against MD was that it involved a gross breach of trust. This is not to say that the offences against SW and SC did not also involve a gross breach of trust. They clearly did. But that factor is part of the definition of the particular offences which the offender committed against them, that is, indecent assault under authority. Because the breach of trust is, in effect, part of that offence, it would be wrong in relation to the offences committed against SW and SC to regard it as an additional aggravating factor. 57Mr Simpson of counsel who appeared for Mr Harmata submitted that all four offences, including the offence in respect of which there was a matter on a Form 1 to be taken into account, fell approximately in the mid-range for offences of this kind. And it was accepted by the offender that no sentence other than a period of full-time custody was appropriate. 58In the Crown's written submissions on sentence, it was submitted that in relation to SC the offence was "at the more serious end of the range of offences of this type". In relation to MD, it was submitted that the offence was "above the middle range of seriousness". But in relation to SW the Crown submitted the offences were "at the lower range of seriousness". 59The last of those submissions was the subject of an exchange between the Trial Advocate and the bench during the sentencing hearing. 60That specific submission is one which was consistent with the sentencing approach at the time of the offences and thereafter. 61However, I think it is appropriate to record 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, that is the very first day of these present sentencing hearings. In the course of his Honour's opening address, Justice McClellan 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 with 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". 62In the course of the exchanges in the present case between the Trial Advocate and the bench, I expressed the view that notwithstanding there was no expert evidence before the Court, it is (intuitively) likely to be the case that a young person on the verge or at the beginning of puberty might well be significantly more adversely affected by "low levels of abuse" than a much younger child. 63The quote that I have just extracted from the opening session of the Royal Commission is worth reflecting on when it referred to "catastrophic consequences" for what might be considered low levels of abuse. But the insight which it contains was not widely held in 1987, if at all, and the offender is not to be unduly punished by reference to it. 64The three victims in this case have all provided the Court with written victim impact statements. At their request, each of the victims read those statements aloud in court. Each of the victims was deeply distressed in that process. And the statements recorded in detail the profound and long term suffering which each of them has endured as a direct consequence of the criminality of this offender, whether that be categorised at the more serious end, at the mid-range or at the lower range of objective seriousness. For each of those victims, the consequences have indeed been catastrophic to varying degrees. It is not necessary and it is inappropriate to comment on which victim has been more severely damaged. 65As to whether there is "...a clear picture of what those earlier sentencing patterns and practices were", the Crown submitted and counsel for the offender did not dispute, that some assistance could be had by reference to the facts and circumstances in Dousha v R and, to a lesser extent, AJB v R referred to in the judgment of R S Hulme J (with whom Harrison J agreed) in PWB v R [2011] NSWCCA 84. It was not submitted by either counsel that any of the other cases collected in that judgment were of direct relevance to the present matters. Having regard to those two decisions, I am not of the opinion that there is any such clear picture. 66Accordingly, I shall sentence in accordance with the guidance provided by MPB v R - that is, having regard to the maximum penalties, the finding of objective seriousness and acknowledging that the sentences at that time were lower than would be applied for more recent comparable offending behaviour. 67In the result, I accept the Crown's various categorisations as to where on the spectrum of objective criminality these various offences are properly to be regarded. 68Martin Harmata was born in 1953. In his early years, he and his family lived in a small village near Oberon. It was a grim and uncomfortable life. Both parents worked hard in the eucalyptus industry such that the offender was, effectively, raised by his sister and brother - who were themselves only eight and nine years old. 69The family lived in a mud hut with no electricity or running water. There were no shops close by. Supplies were delivered weekly, including significantly the offender's father's supply of alcohol. That man was a violent and abusive alcoholic. 70The family moved to Wetherill Park when the offender was about three years old and the family lived and worked on a market garden farm. The older two children and the offender's mother worked very hard on that farm. The offender's father worked very hard at continuing his alcohol addiction. 71There was a great deal of domestic violence between the offender's father and mother. The father was physically and verbally extremely abusive to his wife. She was admitted to hospital on a number of occasions with, amongst other things, broken ribs and facial injuries. The children lived in terror of their father. 72The offender's father was totally neglectful of all his children except to be abusive towards them. 73Whatever money came into the house was certainly not spent on any creature comforts and the offender's mother had to frequently beg for housekeeping money from her husband. 74It was, as I have said, a grim and miserable life for those children and their mother. 75By the time the offender was eight years old, his brother and sister had left home. 76In these circumstances, the offender developed no significant positive relationship with either his parents. By the time he came to adolescence, he was seriously and severely emotionally deprived and neglected. 77The offender was educated in the Catholic education system but he was not a good scholar. But in 1974, when he was twenty years old, he entered the Patrician Brothers Order as a postulant. 78The offender's own sex education before he went into that Order was either manifestly inadequate or non-existent. In addition, once he entered the Order, he was confronted by feelings of religious guilt and repression in relation to his own sexual feelings. 79The offender was examined by an expert clinical psychologist for the purpose of the sentence hearing and a report was placed in evidence. 80The report, amongst other things, diagnosed the offender as having severe major depressive disorder, adjustment disorder with anxiety, persistent depressive disorder with current major depressive episode, unspecified personality disorders with prominent depressive dependence and borderline traits and paedophilic disorder. 81The report also noted the following: "Brother Harmata appears to have marked intimacy skill deficits which relate back to his emotional deprivation and neglect in childhood and adolescence. His lack of sex education and the sex negative dictates of his religious formation have only served to vandalise a sense of healthy sexuality... Over time he has learnt to repress his sexual feelings and impulses and has found no healthy manner to express his sexuality. Brother Harmata's emotional immaturity is evidenced in his interactions with adults and also with children... both his emotional immaturity and his negative sexual formation have no doubt contributed to his offending behaviours". 82There is one aspect of the report which causes me some concern as to the reliability of the history given to the author. In a section entitled "Violence", it states that the offender had an aversion to violence and corporal punishment. It states that Mr Harmata did not have any propensity to violence in his interactions with children. Such a statement is not consistent with the strapping of SC to which I have already referred. The author of the report was not required for cross-examination and as a result, I am obliged to accept the findings in that report which are not inconsistent with other evidence. I do not, however, accept the findings under the heading "Violence". 83The report emphasises in a number of places the fact that Mr Harmata is at extreme risk of self-harm at the present time. 84During the sentencing hearing, Mr Harmata went into the witness box to express remorse and to apologise to each of the victims of his crimes. 85At first blush, the manner in which those expressions of remorse were delivered was somewhat flat and cold. I also have a strong suspicion that the non-admission by Mr Harmata of the earlier two incidents I have referred to involving Mr W and Mr P, in part, arises out of a misguided sense of loyalty to them rather than a reluctance to fully admit to his own wrongdoing. 86However, when one has regard to the report of the psychologist and by having regard to the real risk of self-harm, I am of the opinion that at least on the balance of probabilities, the expressions of remorse in the witness box were genuine. Moreover, the pleas of guilty were not only of utilitarian value, I am also of the opinion that they also were expressions of remorse. The pleas certainly spared the three victims the ordeal of giving evidence at a contested hearing. 87Remorse is an important but not conclusive factor in assessing an offender's prospects for rehabilitation. 88At the time of the first of these offences, Mr Harmata had no prior criminal history of any kind - but, of course, it is self-evident that that was not the case for the other three offences. There is, however, no evidence that he has committed any similar or indeed any offence since 1987. 89The psychologist's report also records, as Mr Harmata said himself in evidence, that he was willing to engage in prison in sex offender programmes. 90In this context, although there is no evidence of Mr Harmata re-offending since 1987, the longstanding and profoundly complicated underlying factors giving rise to that offending behaviour have clearly not been properly addressed. 91Of significance to his rehabilitation is what awaits Mr Harmata upon his ultimate release. Since he was twenty, the only friends he has had and the only work he has known, has been as a teacher and member of the Patrician Brothers Order. That is now all gone. What social support and what employment he will be able to obtain is unknown at this stage. A relapse into a deep depressive condition is on the cards. 92It is therefore difficult to form a firm opinion on the prospects of rehabilitation on the available evidence. Assuming he successfully complies with the sex offender programme whilst in custody, I think it can be regarded as guardedly optimistic. 93Specific deterrence, therefore, still remains a significant consideration in determining the penalty in this case. 94General deterrence is a more important one. The sexual abuse of children is abhorred by any right-minded member of the community. As this case demonstrates, and as this Court sees almost daily, the effects on a child can be, and frequently is, catastrophic. Those who commit such offences, especially those who have access to children in circumstances which are described as being "under authority" should clearly understand that those offences will receive condign punishment - although in this case, that will have to be ameliorated for the reasons I have already referred to. 95The pleas of guilty were entered at the first available opportunity and accordingly, there will be an effective discount of 25%. 96I have not overlooked the positive references provided by the parents of some other children taught by Mr Harmata. No doubt in their case his behaviour is what it ought to have been. But it is well-known that abusers of children are not threats to all children but to those who are vulnerable. It is not inconsistent for an abuser to in fact have non-abusive relationships with most children he comes into contact with. 97Counsel for the offender sought a finding of special circumstances to adjust the ratio of the non-parole period to the head sentence. In support of that submission, Mr Simpson pointed to the age of the offender, the fact that this will be his first time in custody, and his mental health issues. The Crown submitted that a finding of special circumstances could be made given that, at the time the offences were committed, a non-parole period of somewhere between one-third and one-half of the head sentence was ordinarily applied. 98I accept the force of those combined submissions and make a finding of special circumstances. 99I propose imposing an aggregate sentence. Although the legislation bringing aggregate sentences into effect only commenced in 2010, the transitional provisions permit the imposition of an aggregate sentence for an offence whenever it was committed. 100However, before stating the aggregate sentence, it is necessary for me to indicate what sentences I would have imposed, but for that aggregate sentence. The sentences for all of the offences would have been each partially accumulated on the others. There would not have been total concurrency for any offence. 101In relation to the indecent assault on MD, the sentence I would have imposed, but for the aggregate sentence, was a period of imprisonment of three years minus the discount of 25%, that is two years and three months. 102In relation to the first indecent assault under authority, and taking into account the matter on the Form 1 in relation to SW, the sentence similarly would have been 18 months minus the discount of 25%, that is one year one month. In relation to the second indecent assault under authority in relation to SW, the sentence would have been two years minus the discount of 25%, that is one year six months. 103In relation to the indecent assault under authority in relation to SC, the penalty would have been four years six months, minus a discount of 25%, that is three years four months imprisonment. 104The starting date for the aggregate sentence will be backdated by 77 days to take into account the period that Mr Harmata was in custody between his arrest on 12 November 2012 and his admission to bail on 17 January 2013 (two months six days) and the period he has been in custody following the commencement of the sentencing hearing (ten days). 105Martin Harmata, of the offence of indecent assault on a person under the age of 16 years, and the three offences of indecent assault on a person under the age of 16 years and under authority, you are convicted. 106I sentence you to an aggregate term of imprisonment of seven years. I fix a non-parole period of three years six months, backdated by 77 days so as to commence on 11 July 2013 and to expire on 10 January 2017. I fix the balance of three years six months commencing 11 January 2017 and expiring 10 July 2020.