District Court New South Wales Medium Neutral Citation: R v Victor MADELEY [2018] NSWDC 35 Hearing dates: 9 February 2018 Date of orders: 08 March 2018 Decision date: 08 March 2018 Jurisdiction: Criminal Before: His Honour Judge G Lerve Decision: Aggregate sentence - see para [101] Catchwords: SENTENCING – historical sex offences against children – position of trust – multiple victims – sentencing regime at time of offences Legislation Cited: Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Sentencing Act, 1989 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 (2000) 56 NSWLR 146 AJB v R [2007] NSWCCA 51 Butters v R [2010] NSWCCA 1 Cahyadi v R, (2007) 168 A Crim R 41; [2007] NSWCCA 1 Denham v R [2016] NSWCCA 309 Featherstone v R [2008] NSWCCA 71. R v Fox [2011] NSWDC 250. Henderson v R [2016] NSWCCA 87 R v Holder [1983] 3 NSWLR 245 Holyoak v The Queen (1995) 82 A Crim R 502 R v Jacobs [2011] NSWDC 34 R v Moon [2000] NSWCCA 534 R v Muldoon unrep. NSWCCA 13.12.1990 PWB v R [2011] NSWCCA 84 Ryan v The Queen (2001) 206 CLR 267 Tuala v R [2015] NSWCCA 8 R v TWP [2006] NSWCCA 141 R v Van Ryn [2016] NSWCCA 1 Category: Sentence Parties: Director of Public Prosecutions Victor MADELEY Representation: Counsel: Mr Keller for the Offender Solicitor: Ms L Hanshaw for the Director Mr D Barron, solicitor for the offender File Number(s): 2014/303110 Publication restriction: No publication of the names of the victims or anything that might identify them, including the name of the township. Judgment 1. Victor Madeley appears for sentence in respect of 22 counts of sexual offending against children that occurred between 1974 and 1985. Those counts are all contained on the one indictment. There is a form 1 containing two offences, which attaches to count 6 on the Indictment. There are seven victims, to whom I will refer by their initials. This is not to depersonalise them, but rather to ensure their anonymity given the relevant legislation requires that there must be no publication of their names or anything that might identify them. 2. The offender was committed for trial in respect of counts 1 to 15 inclusive from the [T] Local Court on 27 January 2016. A trial date of 28 November 2016 was allocated. Following ongoing negotiations the offender pleaded guilty to counts 1 to 15 inclusive on 2 December 2016. The Crown submits within the written submissions, MFI 1 on sentence, that the appropriate discount for the utilitarian value of the pleas is in the range of 10 to 15%. Mr Keller, Counsel for the offender put that the court would allow 15%. Although I accept without hesitation there were ongoing negotiations a trial date was set. I was informed at the sentence hearing that the victims were not present at court. However, there was a committal for trial, the trial date had been set and the plea was entered after the trial date. In these circumstances I am of the opinion that the appropriate discount for the pleas of guilty is 12.5%, which is the mathematical half-way mark between 10 and 15%. 3. Counts 1 to 6 inclusive relate to the victim RF; counts 7 to 10 inclusive relate to the victim JA; count 11 relates to the victim CT; count 12 to MF; count 13 to LM and counts 14 and 15 to AB. Counts 16 to 22 inclusive relate to the victim PH. PH came forward only after publicity involving the other victims. The counts relating to PH were added ex-officio and the offender pleaded guilty to them on 21 June 2017. The Crown appropriately concedes that the appropriate discount for the pleas of guilty in respect of counts 16 to 22 inclusive is 25%. 4. In addition to the matters on the indictment there is the form 1 document containing two further counts of Indecent Assault Male contrary to s 81 of the Crimes Act, 1900 as it then was. One such count relates to CT and the other to LM. In dealing with the form 1 matters I will need to apply the principles enunciated by the Court of Criminal Appeal in the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002, otherwise known as the Guideline Judgment on Form 1 matters, reported at (2000) 56 NSWLR 146. 5. The offences to which counts 1 to 15 (and the form 1 matters) relate were all committed before the amendments to the Crimes Act that took effect from 14 July 1981 when the definition of sexual intercourse was substantially widened. 6. Counts 1, 2, 3, 7, 9, 10, 11, 13, 14 and 15 are all counts of Indecent Assault Male, contrary to s 81 of the Crimes Act as it was at the time. Count 6 is a count of Buggery contrary to s 79 of the Crimes Act as it then was. Counts 4, 5, 8 and 12 are counts of Procure Act of Indecency with a Male contrary to s 81A of the Crimes Act as it was then. The maximum penalty for the offence of Indecent Assault Male was 5 years imprisonment. The maximum penalty for the offence of Buggery was 14 years imprisonment and the maximum penalty for the offence of Procure Act of Indecency with a Male was 2 years imprisonment. 7. Counts 16, 20, 21 and 22 are charges of Indecent Assault on Person Under 16 years contrary to s 61E(1) of the Crimes Act, which at the relevant time carried a maximum penalty of 6 years imprisonment. Counts 17, 18 and 19 are charges of Sexual Intercourse without Consent contrary to s 61D(1) of the Crimes Act, which carried a maximum penalty of 10 years, given the age of the victim. 8. It needs to be acknowledged that the sentence that will ultimately be imposed on the offender is less than what would be imposed for offending that occurred more recently. This court is obliged to sentence this offender in accordance with the prevailing sentencing practices at the time of the offending. Further, since the offending with which the court is concerned, the legislation has been substantially amended, those amendments including substantially increased maximum penalties. Facts 1. The facts are set out the Statement of Agreed Facts at tab 3 of the Crown Tender bundle, exhibit A on sentence. Given the number of matters, I will make an assessment of the seriousness of the matter when dealing with the facts. On the issue of the objective seriousness of the offending, it is appropriate to note that at the time of the offending the charge of Buggery and indeed the charges of Indecent Assault Male and Procure Act of Indecency with a Male contemplated conduct of a consenting nature between adult men. The Crown's representative made extensive written submission on the issue of the objective seriousness of the matters, which are contained within MFI 1. Mr Keller submitted essentially that all of the offending was within the mid-range. I have taken the various submissions of the parties into account in arriving at the conclusions that I have. 2. The offender was born in 1935 and is now 82 years of age. He was aged between 41 and 50 at the time of the offending conduct. From 1974 until 1986 the offender was involved with the Church of England Boys Society (CEBS). The facts recite that part of the aim of this organisation was to bring boys and young men to commit themselves to the church and promote opportunities for spiritual, physical and social development. 3. All matters involve a substantial abuse of trust. Counsel for the offender conceded as much at the sentence hearing. Offences relating to RF 1. RF was 12 in 1974 and was living with his grandmother. He began attending CEBS with some school friends. The meeting were conducted on Tuesday nights. The offender would attend the victim's residence and drive the victim to the meeting. The offender drove some of the boys home, allowing them to drive while sitting on his lap. 2. Counts 1, 2 and 3 occurred in the first few months of 1974. In respect of count 1 the offender drove a number of boys home and on the occasion to which count 1 relates the victim RF was the last boy in the car. The victim was seated on the offender's lap driving the vehicle. The offender instructed the victim to drive out on the Trungley Road when after a short distance on that road the victim was instructed to do a U-turn and park, which he did. The offender then spoke to the victim about the "provocative" way he was dressed, i.e. "Stubbie" shorts and a tie-dye t-shirt. The offender said, "Your shorts are too revealing and they might promote reactions in people that if you wear these type of revealing shorts you should expect". The offender then removed his erect penis from his pants and took hold the victim's right hand. He placed RF's hand on his (offender's) erect penis and instructed him how to masturbate him by moving his hand up and down. The offender ejaculated after a short while. The offender threatened the victim that if he told anyone, he would say it was his (meaning the victim's) idea. 3. Count 1 involves the offender taking the hand of a 12 year old boy, who he was supervising, placing it on his erect penis and having the boy masturbate him to ejaculation. I assess this matter as being within the mid-range, but towards the upper end of the mid-range. 4. Count 2 involved very similar conduct. In the following two months the offender took the victim to the same area of the Trungley Road, Temora. The offender removed his erect penis from his pants, took the victim's hand and placed it on his (offender's) erect penis and instructed the victim how to masturbate him. The offender ejaculated. These were not isolated incidents as the victim said that this occurred on two other occasions. I assess count 2 as also being within the upper end of the mid-range of seriousness noting the age of the victim, the conduct, that the offender was supervising the victim and that the offender ejaculated. 5. RF determined that because of the offending he would not return to CEBS and made excuses to his grandmother, not wanting to reveal what had been occurring. One night the offender attended the victim's residence and spoke to the victim's grandmother who gave permission for the victim to go with the offender for a driving lesson. They drove out of Temora along the Bundawarrah Road. As they were travelling the offender again told the victim that he was dressing inappropriately and that it was provoking him. The offender stopped the vehicle, unzipped the fly of his pants and exposed his erect penis. The offender then said, "Bring your head over here and put this in your mouth", indicating his erect penis. The offender grabbed the victim's head and forced his mouth over the offender's penis. The victim gagged but the offender continued to force his head down upon him. The victim eventually raised his head after which the offender ejaculated. The offender threated him to return to CEBS or that he would tell people that the victim was gay. 6. Count 3 is a very serious example of an indecent assault, noting the age of the victim, the fact that the offender used the force as described by the victim, the conduct and the ejaculation. The matter is in the upper end of the range of seriousness but is not an example of worst case. 7. Because of the threat the victim returned to CEBS and about a month after so doing the offender called at the victim's home and told the victim's grandmother that he was taking the victim for a driving lesson. The offender drove to the same location in Bundawarrah Road and made the victim fellate him. The offender ejaculated after the victim had removed his mouth from the offender's penis. This is the conduct to which count 4, a charge of Procure Act of Indecency with Male Person. Given the conduct, the age of the victim and ejaculation the matter is in the upper end of the range of seriousness. 8. For the next few months the victim attended CEBS without any improper conduct occurring. One afternoon the offender attended the victim's premises again on the pretext of taking him for a driving lesson. The offender and the victim drove to what the facts describe as some old army barracks in Crowley Street, Temora. The offender unlocked the door with a key and they both went inside. The offender went to a filing cabinet from which he removed two pornographic magazines, one containing heterosexual images and the other homosexual images. The offender inquired as to which he preferred and the victim replied to the effect that he preferred the heterosexual images. The offender had the victim stand above the magazine with his (victim's) penis out of his pants. The offender said, "look at these pictures, have a wank and see if you can get hard". The victim indicated in effect that it will not work, that he was not going to do that and that he did not like the pictures. The victim put his hand on his penis and moved it up and down. The offender masturbated himself to ejaculation. 9. I assess the conduct constituting count 5 as being at the low end of mid-range noting the age of the victim, the conduct and the circumstances of the offending. 10. Count 6 is the most serious of counts 1 to 15. In the autumn of 1975 the victim was at CEBS when a number of the other boys left the church hall to play games. The offender requested the victim to stay behind saying that he wanted to show him something and that he should consider himself lucky. The offender took the victim to a room that contained a number of items of sporting equipment including exercise mats. The offender pushed the victim face-first onto one of the mats. The offender then placed one of his hands firmly between the victim's shoulder blades rendering him unable to move. The offender removed the victim's shorts and underpants, pulling them to the ankles. The victim felt the offender's erect penis at his anus and experienced pain. The offender continued to push his penis against the victim and eventually briefly penetrated him. After a short period of time the offender removed his penis and stood up. The victim stood and pulled up his pants. The offender said to the victim, "If you keep your mouth shut this will never happen again". 11. The penetration was brief, but it was in circumstances where the victim was 13 or 14 and where the victim was forcibly restrained on the floor by the offender. There was no ejaculation. The victim was clearly resisting. The offending essentially amounted to the anal rape of a teenage boy. The offending is above mid-range. 12. Not surprisingly, the victim never returned to CEBS after the conduct to which count 6 relates. Offences relating to JA 1. In March 1974 JA moved with his family from Sydney to Temora. The day he arrived, his mother drove him to school and enrolled him at the Temora High School. Thereafter he caught the bus. The offender was the bus driver. The offender told the victim to sit behind him in order that he could keep an eye on him. Soon the offender suggested that JA join CEBS. In this regard the offender spoke to both of JA's parents, who thought it was a good idea. After a while the offender offered to take JA driving after CEBS one night. JA, who was 14 thought this was "great" being able to drive the car. 2. Counts 7, 8 and 9 arise out of the one ongoing incident. One night after CEBS the offender took the victim JA to Derrick's Lane. The offender inquired of JA, "Do you play with yourself?" The offender pulled over to the side of the road and took his erect penis from his pants and said, "Go on, it won't bite you". The offender reached across and grabbed JA on the crotch on the outside of his clothing, which caused JA to become aroused. This is the conduct to which count 7 relates. Noting the age of the victim and the fact that the offender had his erect penis exposed, the matter is within the mid-range. 3. The offender then said, "Come on, give us a look" and began to undress JA saying that it would "be alright". The offender lowered JA's pants and said, "Give it a lick like a lollipop" and gestured towards his penis. The victim refused and the offender said, "Well use your hand". JA then began masturbating the offender. That is count 8 and given the offending and the age of the victim the matter is mid-range. 4. The offender masturbated the victim. The victim ejaculated into a rag and then the offender did the same. The offender said, "That was great". The offender nibbled on the victim's ear and the victim recalls feeling the offender's unshaven face. The offender said, "You keep getting driving lessons and this will be our little secret. You don't want to be telling people about this." The offender then took the victim home. The offending involved skin on skin contact and the offender ejaculating. The matter is mid-range. 5. Count 10 occurred in a motel room at Parkes. After the victim turned 15 on 31 March 1975, the offender arranged for him to get a part-time job in the shoe shop that he managed. Not long after the victim commenced work he was required to go to Parkes to sell a load of shoes. The offender and victim stayed at a motel. On the second night they were in Parkes the victim, recalls ending up "with no clothes on and in bed with the offender". The offender lay on top of the victim and the victim felt the offender's erect penis pressing against his buttocks. The offender said that he wanted to have anal sex with him. The victim said, "What are you doing" and kicked the offender off. 6. The offending to which count 10 relates is a serious example of an indecent assault. There was skin on skin contact with the offender's erect penis on the victim's bare buttocks. The victim was 15 and the offender was in a position where he was caring for the victim in Parkes away from his home. The offending is within the upper end of the range of seriousness but is not an example of worst case. 7. Nothing further of an improper nature occurred after count 10 between the offender and JA. Not surprisingly, JA stopped going to CEBS. Offences relating to CT 1. Count 11 on the indictment relates to the victim CT and the first matter on the Form 1 attaching to count 6 on the indictment also relates to CT. In 1976 or 1977 the victim began attending CEBS when he was 10 or 11 years of age. The offender was "running" CEBS. The victim rode his pushbike to CEBS. The victim noticed that the offender would stay close by him. 2. After the victim had been attending CEBS for about a year, the offender offered CT a ride home. However, instead of taking the victim home he drove some few kilometres out of town to the Narrenburra Road. The offender stopped the car and asked whether he would like a drive, which the victim accepted. The offender sat CT on his lap and soon thereafter put his hand down the victim's pants and began fondling the victim's penis. This is the conduct to which count 11 relates. It is skin on skin contact with the offender fondling the victim's penis. The victim was 11 or 12. The matter is mid-range. The heading in the Facts says that the offence is Procure Indecent Act, however count 11 on the indictment is appropriately a charge of indecent assault male, given the conduct to which that charge relates. 3. The conduct to which the matter on the form 1 document relates occurred immediately thereafter and is also an Indecent Assault. The victim felt the offender masturbating against his (victim's) back and began crying. The offender did not stop when the victim began to cry. He eventually pulled up his pants and got off the offender's lap. The offender took the victim back to where his bike was and the victim rode home. He did not attend CEBS again after that incident. Offence relating to MF 1. Count 12 occurred sometime in 1978. MF started attending CEBS in late 1976 when he was 14. On one night at CEBS there was an altercation between two of the boys. On the Thursday night after the altercation the offender attended the victim's home in relation to this altercation. With the permission of his mother MF left the house with the offender who was driving a Toyota sedan. The offender drove along the Wagga Wagga Road and after about 5 kilometres turned into a State Forest and went about a kilometre down the road. En route MF inquired as to where they were going and he was told that one of the other boys lived out that way. 2. After stopping the vehicle, the offender turned on the interior light of the car, undid the zip of his pants, removed his erect penis and said, "I thought you might be interested in this". The offender commenced to masturbate and encouraged the victim to do the same. Due to fear the victim could not attain an erection. MF declined to assist the offender masturbate and the offender masturbated himself to ejaculation. Given the conduct including going to a secluded area out of town and the age of the victim the offending is mid-range. Offences relating to LM 1. Count 13 on the indictment and the second matter on the form 1 relate to the victim LM. Both matters arise out of the one incident. The victim LM met the accused in 1973 when he began playing soccer. He commenced his schooling at Springdale, however that school closed in 1974 and he thereafter attended Temora Public School. He travelled by bus, which was driven by the offender. In 1977 the victim's family moved into the Temora township at which time he was in the first year of High School. The offender was friendly with the victim's family. When the victim was 13 or 14 the offender arranged for him to travel with him to his work in Cootamundra. On the way to Cootamundra the offender started grabbing the victim on the crotch area. 2. The two of them went to the offender's home on arrival at Cootamundra where the offender offered the victim a beer. They sat in the lounge room and talked. The offender gave the victim spirits which immediately affected him. The offender removed his penis from his pants and said, "Do you want to touch?" The victim said that he did not want to and that he wanted to go to bed. The offender showed the victim the bedroom and suggested the victim sleep naked. The victim went to bed in his underwear. The offender got into bed with the victim, held him down and kissed him on the mouth. This is the matter to which the second Form 1 matter relates. 3. The conduct to which count 13 relates occurred immediately thereafter. The offender reached down, grabbed the victim's penis and played with it until the victim ejaculated. The offender kept holding the victim down and asking him to touch him, which the victim refused. The offender left the bedroom. The victim saw little of the offender after this as the relationship between the victim's parents and the offender soured. The conduct to which count 13 relates is within the mid-range, noting the conduct involved the victim being held down, the age of the victim and the fact that the victim was in the offender's care. Offences relating to AB 1. Counts 14 and 15 on the indictment relate to conduct that occurred in 1979 where the victim was AB. The victim began attending CEBS in 1976 or 1977. In 1978 the victim and his family moved from a property into Temora. When the victim turned 15 he became involved with a cricket club. On one occasion he was at a local hotel selling raffle tickets as a fund raiser for the cricket club. He met the offender in the hotel who bought him vodka and orange drinks, which he drank. The offender invited the victim to meet him later. 2. Later in the evening the victim met the offender at the offender's shop in Hoskins Street where the offender poured the victim more vodka and orange drinks. The victim drank the drinks, but later felt ill and went outside to vomit. The victim was confronted by a security officer to whom the offender spoke and the victim went home. About two weeks later the victim was again selling raffle tickets and saw the offender at the Temora Hotel. The offender purchased vodka and orange drinks for the victim and asked the victim to come to his home. They walked to the offender's car. 3. They drove towards the airport. The offender inquired of the victim as to whether he was having sex with his sister and he said that he was not. The offender stopped the car, unbuckled his belt, undid his zip and pulled out his penis. He then took the victim's hand and placed that hand on his (offender's) penis. The offender said, "There is nothing wrong with this, it'll be all right". The victim masturbated the offender for about a minute. The victim remembers being very confused about the situation. The victim said that he had forgotten to pick up his sister from a dance. The victim stopped masturbating the offender and the offender drove the victim into town. Count 14 relates to this conduct and is within the mid-range noting the conduct which was skin on skin contact. 4. About two weeks later the victim again saw the offender at the hotel. The offender purchased him beer and invited him back to his house. The offender's son arrived and the victim left. 5. About a week before the victim's School Certificate he was again selling raffle tickets. The offender again bought the victim drinks after which they left the hotel in the offender's car. The offender drove to the Back Mimosa Road and began talking about the victim having sex with his sister. The offender then drove to the Airport Road. The offender stopped the car and pulled his erect penis from his pants. He then grabbed the victim's head and said, "Why don't you come down and use your mouth?" the victim performed fellatio on the offender for 30 seconds to a minute before stopping and getting out of the car. Noting the conduct including the offender grabbing the victim's head, the offending to which count 15 relates is above mid-range. 6. The offender was arrested and formally charged on 15 October 2014 at the Temora Police Station. The matter received some publicity after which the victim PH came forward. Offences relating to PH 1. PH was born in 1969 and from the age of 10 weeks lived with adoptive parents in Peakhurst in Sydney. His parents were heavily involved with the Anglican Church. The victim was a member of CEBS from when he was 5 until he was about 16 or 17. The CEBS meeting at Peakhurst was on a Friday night. The offender and his son would visit Peakhurst CEBS from time to time. The offender became friends with the victim's parents. In the summer of 1984/5 the offender offered the victim the opportunity to visit and stay at his farm at Tumut. The victim was keen to go. The offender drove the victim from Peakhurst to Tumut. During the stay the victim slept in the offender's room but on a separate bed. 2. Counts 16 to 22 inclusive of the indictment relate to a series of acts committed by the offender in the course of one ongoing episode. Four days into the stay the victim was on his bed wearing only shorts and did not have any bed coverings over him. 3. The offender came into the room shortly after the victim had gone to bed. The offender was naked. He sat on the victim's bed and grabbed the victim's penis on the outside of clothing. This is the conduct to which count 16 relates. The offender said, "It's time for some fun". The victim said, "What are you doing" to which the offender said, "Its alright, this is normal". Count 16 is within the low end of the mid-range noting the conduct and that the offender was naked. 4. Then the offender pulled down the victim's shorts and underpants. The offender fellated the victim and was masturbating while doing so. This is count 17 and is within the lower end of the mid-range. 5. The offender stopped and moved off the bed. He knelt in front of the victim. He grabbed the victim's head and pulled it towards his (offender's) penis. He forced his penis into the victim's mouth and made the victim perform fellatio on him for what the victim said "felt like ages". The conduct constituting count 18 is within the mid-range. 6. The offender then took his penis out of the victim's mouth and lay on the bed. He then put his penis into the victim's anus causing pain. This is count 19 and is slightly above mid-range. 7. While anally penetrating the victim the offender reached around and took hold of the victim's penis and masturbated it. This is count 20, which is an indecent assault. In all of the circumstances the offending is mid-range. 8. After some time the offender removed his penis from the victim's anus. He then masturbated himself and ejaculated over the victim. This is count 21, a further indecent assault and is also within the mid-range. 9. The offender then masturbated the victim until he (ie. the victim) ejaculated. This is also an indecent assault and is also within the mid-range. 10. The offender went and obtained some toilet paper which he tossed to the victim and told him to clean himself up. He said to the victim, "If you ever tell anyone about this I'll make sure you're shamed. I'll tell everyone you started it and you're gay". Two days later the offender drove the victim to Cootamundra to catch the train to Sydney. On the way he said to the victim, "Don't forget I'll tell everyone you're a poofter and you started it and you did this to me". The victim's father collected him in Sydney and the victim did not disclose the conduct until 2016. 11. The recitation of the facts in the somewhat bland and perhaps even sanitised fashion within these remarks on sentence perhaps does not truly reflect the enormity of the offender's appalling and criminal conduct. For about a decade the offender used his position within the church in general and the CEBS in particular to prey on teenage boys while maintaining a public persona of respectability. He used his involvement in CEBS as a means of accessing a regular supply of teenage boys for his own sexual gratification. The threats used to ensure the silence of the victims were no minor threats given the attitudes of the society that prevailed at the time and that homosexual conduct even between consenting adults was illegal until 1984. To say that the offences involve a significant breach of trust is to significantly understate the situation. Criminal History 1. The offender was born in 1935 and is now 82 years of age. He has no criminal history. This, however, is of little assistance to him. It was his public persona that assisted easy access to his victims. As the Crown correctly sets out at [55]-[56] of her submissions MFI 1 on sentence it would be an error to give no leniency for prior good character, but the offender is not entitled to significant leniency for otherwise good character. The Crown refers to the Court to the decisions of Ryan v The Queen (2001) 206 CLR 267 and R v TWP [2006] NSWCCA 141 at [17] per Rothman J. 2. I accept however, as counsel for the offender submitted at the sentence hearing that there is no suggestion of any further offending after the offences to which counts 16 to 22 on the Indictment relate. General Deterrence 1. The offender is now 82 years of age. For that reason specific deterrence has little work to do within this sentencing exercise. However retribution and denunciation of the conduct are certainly matters to which appropriate weight will need to be given. Counsel for the offender also put that general deterrence did not warrant the same significance as it might in other cases. I understood the submission to be based on the age of the offender and the historical nature of the offending. There is some force in this submission. 2. The court is dealing with old offending and general deterrence in the circumstances of this case does not achieve the same significance as with more recent offending, but that does not mean that it has no work to do within this matter. The strong need for general deterrence when dealing with offences of child sexual assault is undoubted. It goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at 1789 where his Honour said: "The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: 'General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.'" Old offending and sentencing practices at the time 1. As I indicated at the commencement of the sentencing hearing, the court is obliged to sentence in accordance with the sentencing practices and trends at the time of offending. This has the result in cases such as this of producing a sentence which is far more lenient than offenders could expect to receive if the offending was recent. Indeed, I note that the Crown's representative indicated at the beginning of the sentence hearing on 9 February 2018 that the victims had been advised that the sentence that would be imposed would not be as significant if the offending had been recent. 2. There are a number of relevant authorities on the issue of sentencing the offender in accordance with the sentencing practices and trends at the time of the offending. These include R v Moon [2000] NSWCCA 534, AJB v R [2007] NSWCCA 51, PWB v R [2011] NSWCCA 84 and more recently Denham v R [2016] NSWCCA 309. Mr Keller, counsel for the accused, referred me to the decisions of R v Jacobs [2011] NSWDC 34 and R v Fox [2011] NSWDC 250. Judge Garling in Jacobs referred to the decision of the Court of Criminal Appeal in Featherstone v R [2008] NSWCCA 71. I am very grateful for the Crown's industry and assistance in finding and including in the folder of authorities information from the Public Defenders relating to some offences of the same age as in the matter presently under consideration. I am of the opinion that the offending in the matter presently under consideration is more serious than that in either of the matters of Jacobs or Fox given the number of victims and the number of counts and the conduct in the matter presently under consideration. I note the very helpful table annexed to the judgment of RS Hulme J in PWB v R. 3. One of the difficulties in sentencing for conduct such as in this matter in accordance with the sentencing trends at the time of the offending is that very little of this type of offending was reported at the time. As much appears to have been recognised in Denham. In the matter presently under consideration I have not been able to discern any particular sentencing trend. In these circumstances, I note the judgment of Howie J in Moon at [69]-[71]: "A pattern of sentencing, if available, will also indicate the range of appropriate sentence for the type of conduct under consideration. But this pattern will reflect "the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature" : Oliver, above, at 177 [70] The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. [71] When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time." 1. Further, one of the many complicating factors of dealing with the matter in accordance with sentencing trends at the time was the remissions system that applied before the commencement of the Sentencing Act, 1989. It is tolerably plain from the decisions of Moon and AJB that this justifies or even requires a very generous finding of special circumstances where the non-parole period is between 35% and 50% of the total sentence. This is one of many factors that may lead the community in general and the victims in particular to conclude that the court has not imposed an adequate sentence on this offender. However, this court is obliged to follow the precedents set by the appellate courts. Accumulation and Totality 1. The issue of dealing with the matter in accordance with prevailing sentencing trends at the time of the offending conveniently leads to the issue of accumulation and totality. I indicated at the sentence hearing that I propose to impose an aggregate sentence. Neither party opposed that course. Sentencing trends at the time of the offending included a much greater degree of concurrency, particularly in circumstances where a series or number of offences arose out of the one ongoing episode for example the offending against the victim PH. 2. However, while I maintain that the imposition of an aggregate sentence is appropriate, if separate sentences were to be imposed there would need to be some meaningful but partial accumulation of sentence to recognise that the court is dealing with offending against seven different victims over a period of slightly in excess of ten years. Further, the offending against RF involved six different episodes of offending. The matters involving JA involve two separate episodes of offending, which is also the situation for the matters involving the victim AB. There is one offence in respect of the victims CT, MF and LM. Even though the offending in respect of the victim PH was contained within the one ongoing episode, the offences were serious and involved multiple counts of various types of sexual intercourse without consent. I accept that the sentencing trends at the time of the offending would mean that there would be substantial concurrency with the sentences in respect of counts 16 to 22 inclusive, ie. the offences relating to the victim PH. 3. On this issue of accumulation and concurrency of sentences Howie J in Cahyadi v R, (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] said: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 1. It seems to me, with unfeigned respect, that this is no different in practical terms to what was said by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260, namely, "The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." 1. I have referred to Holder because 1983 is within the time frame of some of the criminality in the matter presently under consideration. Victim Impact Statements 1. The hearing of this matter commenced before me on 13 November 2017 when the court received the Victim Impact Statements from PH, RF, JA, and AB. Those were read to the court either in the court room or via audio visual link. Those victim impact statements were compelling and speak eloquently of the long term harm, particularly emotional harm that can be and is occasioned by offending such as the court is dealing with in this matter. Those victim impact statements make it clear that the effect of the offending is precisely as one would expect the offending to have. One can only hope that the offender listened carefully as the victims gave their victim impact statements. 2. At the sentence hearing on 9 February 2018 the Crown's representative made it clear that the Crown was not submitting that the court would find substantial emotional harm as a factor of statutory aggravation pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act, 1999. Although the victim impact statements are compelling there is no other material. In light of this and the effect of the decision of the Court of Criminal Appeal in Tuala v R [2015] NSWCCA 8 I could not find the statutory factor of aggravation of substantial emotional harm is made out. 3. However, as I tried to make clear at the sentence hearing on 9 February 2018 the effect of the crimes of the victims is a very real consideration within s 3A(g) of the Crimes (Sentencing Procedure) Act. Subjective Case 1. The offender did not give or call any oral evidence at the sentence hearing. The court is assisted so far as the subjective case is concerned by two pre-sentence reports, a report from GEO and submissions of counsel. There was very little subjective material available to the court. 2. The offender spent the early years of his childhood with his aunt and uncle and was returned to his biological family at the age of four and a half years. His brother, to whom it seems the offender was close, was accidentally shot and killed on the family property. He told the author of the report dated 24 January 2017 that he had a "loving home". The offender married but his wife died in 1978 owing to ill health associated with her epilepsy. The offender told the author of the report that the offending (presumably with the victims other than PH) occurred when his wife's health was in decline. There is one child of the marriage, now in his early 50's. The relationship between the offender and his son is not good. The offender was living alone in Temora before he was taken into custody. 3. The author of the report opines that it is possible the offender may have been suffering symptoms congruent to depression. However, there is no material that would entitle the court to make that finding. 4. According to the author of the report of 24 January 2017 the offender denied some of the events contained within the agreed facts. The report then goes on record at p 3 that the offender "considered there to be little value in offence specific intervention saying he is too old and it is too late as he no longer partakes in such "carryings on"'. 5. As I indicated in the course of the sentence hearing on 9 February 2018 the description of the offending as "carryings on" trivialises the criminality and has overtones of the victims consenting to the conduct, which they most certainly did not. Counsel for the offender at the sentence hearing took some time to indicate that he had specific instructions from his client to apologise to the victims. Counsel went through the victims one by one and indicated that his client apologised for the humiliation, injury and hurt that was caused. 6. While I have no doubt that counsel was acting on his instructions I am most certainly not prepared to make a finding that the offender is remorseful. In the context of what the offender told the author of the PSR of 24 January 2017 the apologies were hollow. There is simply no evidence on which the court could find on balance that the offender was remorseful – see for example Butters v R [2010] NSWCCA 1 per Fullerton J at [17]. The author of the PSR of 24 January 2017 opined that the offender's attitude to his offending demonstrated limited insight into the magnitude of his offender and displayed a tendency to minimise his actions. 7. Similar conclusions are reached by the authors of the report prepared by the GEO Group Pty Ltd of Parklea Correctional Centre (GEO Report). The authors conclude that the offender appears to have a range of cognitive distortions in relation to his offences. The authors also opine that "it appears that [the offender] fails to accept that his offending may have lasting psychological impacts on his victims". 8. The report of 24 January 2017 reported that the offender was involved in community activities. This is consistent with what was put at the sentence hearing on 9 February 2018 that the offender was the President of the Lions Club at Temora at the time of his arrest. I accept that and the fact that he resigned from all community activities immediately following his arrest. 9. The author of the pre-sentence report also opines that the offender is at a low risk of re-offending. The offender is now 82 and there is no suggestion of any offending after the mid 1980's. The authors of the report of 30 January 2017 of the GEO Report (page 1) that the offender is in the below average range for sexual re-offending. In these circumstances I am prepared to find on balance that the offender is unlikely to re-offend. 10. In other circumstances I might be prepared for the same reasons to find on balance that there are good prospects of rehabilitation. However, given the contents of the pre-sentence and GEO reports as to the attitude of the offender I am not prepared to make that finding in this case. I note that the more recent report of 19 July 2017 also indicates that the offender's attitudes to his offending remains consistent with those contained in the earlier reports. 11. I note however that the more recent PSR sets out that the offender consented to being placed on a sex offender programme waiting list, however, it is unlikely that he would be eligible for such a course until he is sentenced. I note that the authors of the GEO report indicate that if the offender receives a custodial sentence - which, given the offending, is inevitable - that he would be eligible for low intensity specialist sex offender treatment programme. 12. The offender is now 82 years of age. There was no evidence called to the effect that the offender will find custody more onerous. My notes and memory is that no submission was made in this regard. In the circumstances of this case I am quite unable to make that finding. There is no principle that the offender should not be sentenced to a term that would result in him spending the rest of his life in gaol. One of the cases usually cited as authority for that proposition is Holyoak v The Queen (1995) 82 A Crim R 502. I accept that the non-parole period that I will be imposing in this matter may well have the practical result of the offender spending the remainder of his life in custody. 13. Counsel for the offender addressed extensively. He submitted appropriately that the pleas of guilty for counts 16 to 22 inclusive attracted the full 25% discount for the utilitarian value of the pleas. The Crown, appropriately, did not dissent from this. Counsel submitted that the court should allow 15% discount for the pleas in respect of counts 1 to 15 inclusive. I have already dealt with that. 14. Mr Keller then addressed on the decision of Henderson v R and took the court at some length to the different conclusions arrived at by Hoeben CJ at CL and RS Hulme AJ in respect of the appropriate indicative sentences. Counsel also submitted that the non-parole period would be between 35% and 50% of the total sentence. Counsel also alluded to the fact that while the remissions regime that applied prior to 1989 had to be taken into account the offender also receives a nominated numerical discount for the plea of guilty. 15. Using some of the comments made in Henderson Mr Keller submitted, as I understood the submission, that historically at least some indecent assaults were dealt with by non-custodial sentences. I have little doubt that was the case. However, I am firmly of the opinion that in the matter presently under consideration, even allowing for the sentencing trends at the time of the offending, it would be entirely inappropriate for any of the indecent assaults in this matter to be dealt with by other than a sentence of full-time custody. 16. Mr Keller took some time in addressing the issue of the objective seriousness of each of the matters. I have already indicated that I took those submissions into account when arriving at a decision as to the seriousness of each matter. 17. There was mention of the offender's "family survivors" in the course of submissions. One of the offender's brothers apparently died at the end of last year. There is a level of distance between the offender and his son because of the physical distance they are apart and the offending. It was put and I accept that the offender is suffering from a degree of isolation because of the offences. Sister Rosemary, a prison ministry volunteer was present at the sentence hearing on 9 February 2018 to support the offender. 18. As I understood the submission, it was put that there would be a substantial finding of special circumstances. Given what I have already said about dealing with the matter in accordance with sentencing trends at the time of the offending, there must be a very generous finding of special circumstances. Indeed, the finding is far more generous than would be justified if the court was dealing with more recent offending. Crown's submissions 1. I have already referred to a number of aspects of the written submissions from the Crown, which are MFI 1 on sentence. It was strongly submitted by the Crown that the court would not find that the offender is remorseful. I have already dealt with that aspect in some detail. Further it was put, appropriately, that the involvement of the offender in the community highlights a feature of this case in that, to paraphrase the submissions, the outwardly respectable persona of the offender made it easier for the offender to approach the victims and their families. 2. The Crown went on to distinguish the cases of Fox and Jacobs in that the offenders in those cases demonstrated a high level of remorse. It was submitted, correctly, that the matters to which the offender has pleaded guilty demonstrate a significant breach of trust. 3. Further, the Crown submitted that despite the offender's age the issues of general and specific deterrence have a part to play in the sentencing process. I agree, certainly so far as general deterrence is concerned. Given the age of the offender specific deterrence, it seems, has little work to do. However, I accept that denunciation and retribution are matters that will need to be factored into the sentence. As the Crown submits at [65] of MFI 1, these crimes particularly offend the moral sense of the community. 4. The Crown submitted that the threats made by the offender to the boys to ensure that they did not disclose the offending is a relevant factor on the issue of delay. I agree with the Crown in this regard. I have already made comment about those threats. General Remarks 1. I remain of the opinion that it is appropriate to deal with this matter by way of an aggregate sentence. I will set out a table in which the number of the count, a summary of the conduct to which that count relates, the maximum penalty and the total sentence that would have been imposed had separate sentences been imposed. 2. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community. 1. Section 5 provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives that no other sentence is appropriate. Clearly in this matter given the multiplicity of the offending, the type of offending and the maximum penalties there must be a sentence of imprisonment. No contrary submission was made. Clearly that imprisonment must be full time custody. 2. The parties agree that the sentence should commence from 2 December 2016. 3. I invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. The sentences that would have been imposed had separate sentences been imposed are set out in a table that follows. Table Matters relating to victim RF Count Offence Description Maximum Penalty Indicative sentence 1 Indecent Assault Male 1.1.74-1.4.74 – placing victim's hand on exposed erect penis in motor vehicle 5 years imprisonment – no SNPP 1 year 9 months (starting point 2 years) s. 81 Crimes Act, 1900 2 Indecent Assault Male 1.1.74-1.9.74 – placing victim's hand on erect penis – instructed how to masturbate to ejaculation in motor vehicle 5 years imprisonment – no SNPP 1 year 9 months (starting point 2 years) s. 81 Crimes Act 3 Indecent Assault Male 1.4.74 – 1.9.74 – grab hold of victim's head and forcing mouth over penis - ejaculation 5 years imprisonment – no SNPP 3 years (starting point 3 years 6 months with some minor rounding down) s. 81 Crimes Act 4 Procure Act of Indecency with male person 1.6.74 – 1.9.74 – victim made to fellate offender to ejaculation in motor vehicle 2 years imprisonment – no SNPP 15 months (starting point 18 months) s. 81A Crimes Act 5 Procure Act of Indecency with Male Person 1.9.74 – 1.3.75 – encouraged victim to masturbate having showed him pornography – offender put hand on victim's penis 2 years imprisonment – no SNPP 10 months (starting point 12 months with some minor rounding down) s. 81A Crimes Act 6 Buggery 1.3.75 – 1.6.75 – anal sex while being held down on floor 14 years imprisonment – no SNPP Taking into account the form 1 matters) 7 years and 10 months (starting point 9 years) s. 79 Crimes Act Matters relating to victim JA 7 Indecent Assault Male 1.4.74 – 31.12.74 – grab victim's penis on outside of clothing while offender's penis exposed in motor vehicle 5 years imprisonment – no SNPP 12 months (starting point 15 months) s. 81 Crimes Act 8 Procure Act of Indecency with Male Person 1.4.74 - 31.12.74 – immediately after count 7 – encouraged victim to masturbate him 2 years imprisonment – no SNPP 12 months (starting point 15 months) s. 81A Crimes Act 9 Indecent Assault Male 1.4.74 – 31.12.74 – immediately after count 8 – offender masturbates victim – nibble on ear 5 years imprisonment – no SNPP 15 months (starting point 18 months) s. 81 Crimes Act 10 Indecent Assault Male 1.4.75 – 31.12.75 in motel at Parkes – erect penis on buttocks on bed both naked 5 years imprisonment 2 years 6 months (starting point 3 years) s. 81 Crimes Act Matter relating to victim CT Indecent Assault Male 11 s. 81 Crimes Act 1.11.76 – 1.3.79 – fondling victim's penis down pants – sitting on lap in car driving – Form 1 – offender masturbating as part on ongoing conduct 5 years imprisonment – no SNPP 2 years (starting point 2 years 6 months with rounding down) & Form 1 Matter relating to victim MF 12 Procure Act of Indecency with Male Person 1.1.76 – 31.12.78 – following altercation between boys at CEBS – drives victim out of town masturbates in motor vehicle in victim's presence 2 years imprisonment – no SNPP 10 months (starting point 12 months) s. 81A Crimes Act Matter relating to victim LM Indecent Assault Male 13 s. 81 Crimes Act 1.11.76 – 1.3.79 – masturbating victim to ejaculation in bed. Form 1 – removing penis from pants – in bed with victim kiss on mouth while holding victim down – alcohol given to victim 5 years imprisonment – no SNPP 2 years 3 months – starting point 2 years 9 months with rounding down & Form 1 Matters relating to victim AB Indecent Assault 1.6.79 – 31.12.79 14 Male Placing victim's hand on erect penis in motor vehicle – masturbation – gave complainant alcohol 5 years imprisonment – no SNPP 2 years (starting point 2 years 6 months with rounding down) S 81 Crimes Act 15 Indecent Assault Male 1.6.79 – 31.12.79 5 years imprisonment – no SNPP 2 years 6 months (starting point 3 years) s. 81 Crimes Act Grab victim's head and forces mouth onto penis in motor vehicle Matters relating to victim PH – PH comes forward after seeing media reports relating to offender. Offender lives on a farm at Tumut Indecent Assault 16 Person under 16 years 1.12.84 – 1.3.85 Offender naked goes into room sits on bed and grabs victim on penis on outside of clothing 6 years imprisonment – no SNPP 11 months (starting point 15 months) s. 61E(1) Crimes Act 17 Sexual Intercourse Without Consent 1.12.84 – 1.3.85 – immediately follows count 16 – pulls down victim's shorts and underpants – offender fellates victim while masturbating 10 years imprisonment – no SNPP 3 years (starting point 4 years) s. 61D(1) Crimes Act 18 Sexual Intercourse Without Consent 1.12.84 – 1.3.85 – immediately following count 17 – pulled victim's head to penis – forced penis into victim's mouth 10 years imprisonment – no SNPP 3 years 4 months (starting point 4 years 6 months) s. 61D(1) Crimes Act Sexual Intercourse without Consent 19 s. 61D(1) Crimes 1.12.84 – 1.3.85 – immediately following count 18 – took penis out of victim's mouth and placed it in victim's anus causing pain 10 years imprisonment – no SNPP 5 years (starting point between 6.5 and 7 years) Act Indecent Assault 20 Person under 16 years 1.12.84 – 1.3. 85 – at same time as count 19 – took hold of victim's penis and rubbed hand up and down 6 years imprisonment – no SNPP 12 months (starting point 18 months with rounding down) s. 61E(1) Crimes Act 21 Indecent Assault Person Under 16 Years 1.12.84 – 1.3.85 – immediately after count 20 – removes penis from victim's anus and masturbated ejaculating over victim 6 years imprisonment – no SNPP 2 years 3 months (starting point 3 years) s. 61E(1) Crimes Act 22 Indecent Assault Person Under 16 years 1.12.84 – 1.3.85 – immediately after count 21 – masturbated victim to ejaculation 6 years imprisonment – no SNPP 15 months (starting point 20 months) s. 61E(1) Crimes Act 1. These remarks have been reduced to writing and a copy of the remarks on sentence including the table will be provided to the parties immediately after the pronouncement of sentence. A copy of the remarks will remain with the court file. Orders 1. In respect of each of the matters to which the offender has pleaded guilty he is convicted. 2. The offender is sentenced to an aggregate sentence of 18 years imprisonment with a non-parole period of 8 years and 6 months. The non-parole period will date from 2 December 2016 and will expire on 1 June 2025. The balance of term on parole will commence from 2 June 2025 and will expire on 1 December 2043. 3. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release. The non-parole period is approximately 47% of the total sentence. The reasons for that finding of special circumstances have been enunciated within these remarks but relate particularly to sentencing the offender in accordance with the sentencing trends at the time of the offending. ********** Amendments 13 March 2018 - Name of township removed as part of non publication order. 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: 13 March 2018