District Court New South Wales Medium Neutral Citation: R v David FORD [2018] NSWDC 183 Hearing dates: 26 February 2018 – 7 March 2018 Date of orders: 15 March 2018 Decision date: 15 March 2018 Jurisdiction: Criminal Before: Tupman DCJ Decision: AR: Count 1: Fixed term of imprisonment of 6 months. GM: Counts 2 and 3: Fixed term of imprisonment of 12 months. GJ: Count 4: Fixed term of imprisonment of 12 months Count 5, 6, 7, 8, 9, 10, 11, 13, and 14: fixed term of imprisonment of 18 months. Count 12: NPP of 2 years with parole thereafter of 3 years, giving rise to an overall term of 5 years. Count 15: Fixed term of imprisonment for a period of 18 months. GF: Count 16 Fixed term of imprisonment of 3 months. AJ: Counts 4 and 6 Fixed term of imprisonment of 2 years. Overall Non-Parole Period of 5 years with overall parole thereafter of 3 years giving to an overall term of 8 years imprisonment. Catchwords: CRIMINAL – Sentence – Committed for Trial – Late guilty plea – 18 Counts – Historical child sexual assault – Indecent assault - Attempt sexual intercourse – Sexual intercourse – Grooming – under 16, between 11 and 15 – No criminal record – committed over a period of at least 10 years – Myriad of medical problems – Strict bail conditions- Good prospects of rehabilitation – aggravated indecent assault mid-range objective seriousness – small discount for plea of guilty Legislation Cited: Crimes Act; s61E, 61M, 61J, 66C, Crimes (Sentencing Procedure) Act; s 21A(5A) Cases Cited: PWB v R [2011] NSWCCA 84 Category: Sentence Parties: David Ford The Crown Representation: Counsel: F/W Mr Ford: Mr Winch Crown: Mr Todd File Number(s): 2016/62674; 2016/257888; 2016/257872; 2016/257863; 2016/257875 Judgment 1. Her Honour: The offender David Ford is before the Court for sentence on 18 separate counts which fall into the overall category known as historical child sexual assault offences. These are ultimately for sentence following pleas of guilty but in each case the pleas were entered late. The pleas are entered to counts in two separate indictments as follows; the first indictment is dated 28 February 2018. There are pleas of guilty to 16 separate counts involving four different victims. I will be using initials when referring to these victims to ensure that there is no publication of anything that might identify them. 2. The individual counts in that indictment are as follows; Count 1 that between 12 May 1987 and 11 May 1989 at Cooma the offender indecently assaulted AR who was then under 16, namely 12 or 13. This offence is contrary to section 61E of the Crimes Act which at that time carried a maximum penalty of four years imprisonment. 3. Counts 2 and 3 allege that between 1 October 1991 and 31 January 1992 at Cooma the offender indecently assaulted GM in circumstances of aggravation those being that he was under the age of 16 at the time, namely 12. These two offences are contrary to s 61M and subs (1) of the Crimes Act which at the time carried a maximum penalty of seven years imprisonment. 4. Counts 4, 5, 6, 7, 8, 9, 10, 11, 13 and 14 are ten counts that between 1 June 1992 and 24 May 1996 at Cooma the offender indecently assaulted GJ in circumstances of aggravation, those circumstances being that the complainant was under the age of 16 at the time, namely between 11 and 15. They are also contrary to s 61M(1) with the same maximum penalty of seven years. 5. Count 12 is a charge that between 1 January 1992 and 24 May 1996 at Cooma the offender attempted to have sexual intercourse with the complainant GJ without his consent knowing that he was not consenting in circumstances of aggravation, namely that he was under 16, namely 15 at the time. That offence is contrary to s 61J subs (1) and carries a maximum penalty of 20 years imprisonment. 6. Count 15 is a charge that between 1 January 1992 and 24 May 1996 at Cooma the offender had sexual intercourse with GJ who was then aged between ten and 16, namely between 11 and 15. That is an offence contrary to s 66C subs (1) which at the relevant time carried a maximum penalty of eight years imprisonment. 7. Count 16, the last count in that indictment, is a charge that between 1 January 1997 and 31 December 1998 at Cooma he indecently assaulted GF in circumstances of aggravation, namely that he was under 16, namely 14 or 15 at the time. That is also an offence contrary to s 61M subs (1) which also carried a maximum penalty of seven years imprisonment. 8. So for this first indictment, in summary, there are 16 counts involving four separate complainants all of whom were young males between 11 and 15 involving allegations of indecent assault, or in relation to the complainant GJ, two more serious allegations one of aggravated attempted sexual intercourse without consent and the other sexual intercourse with a person between ten and 16. The time period covered by these 16 counts ranges from 1987 to 1998. 9. The offender is also to be sentenced following his pleas of guilty to two counts in a separate indictment dated 7 February 2018. On that day he pleaded guilty to counts four and six in that indictment and the Crown accepted those pleas in full discharge of that indictment. He is thus to be sentenced for two offences, counts 4 and 6 that between 29 March 1986 and 21 December 1986 at Cooma he had sexual intercourse with AJ who was then aged between ten and 16, namely 15. These are both contrary to s 66C subs (1) which at the time had a maximum penalty of eight years imprisonment. These two offences occurred on the same day and the complainant at that stage was a 15 year old girl. 10. These pleas were all entered late. The offender was arrested in relation to the complainant GJ on 26 February 2016. He was granted bail after four days on 1 March 2016. 11. He was later charged in relation to other complainants and arrested for them on 26 August 2016 and spent one further day in custody. Thus until the time his bail was revoked last Wednesday, 7 March, he had previously spent five days in custody bail refused. 12. He was committed to the Court from the Local Court initially on one indictment covering all five complainants. The trial was listed, theoretically, as a special fixture in the Queanbeyan District Court to commence on 26 February 2018. The Crown by then elected to present two indictments and for there to be two back to back trials. The first indictment now represented by the earlier indictment containing 16 counts but which initially contained 19 was in relation to the four male complainants and the second trial for the female complainant, AJ. 13. The first trial commenced before me on Monday 26 February. There was a separate trial application on behalf of the offender which depended on a finding in relation to tendency evidence. That issue was heard and determined and I delivered a judgment on Tuesday 27 February. 14. The trial involving the four male complainants then commenced with a jury on that day. AR and GM, the complainants for counts 1, 2 and 3 finished their evidence by the end of that day. The following day, day three of the trial, when the trial recommenced the offender, through his counsel, indicated that he wished to plead guilty. There was some negotiations and the indictment now before me was ultimately presented. Before the jury the offender pleaded guilty to all 16 counts. The jury was discharged and he has since been convicted by me of those 16 counts. 15. The pleas thus were not entered early but there is a utilitarian value represented by them in my view. This first trial was listed for two weeks. It is most unfortunate that at least two of the complainants have already given their evidence but it was short. The other two complainants did not have to give their evidence to the Court and particularly in relation to the complainant, GJ, his evidence would have been more lengthy and I infer from the content of his victim impact statement that he is likely to have experienced considerable emotional turmoil and trauma during the course of giving evidence. That has been avoided as has a two week trial. 16. Further there is other value in the plea, namely, the public affirmation by the offender of his guilt for these offences and the impact that is likely to have on the victims after so many years. There should, in the circumstances, be some discount for the pleas of guilty even though they are late. They should be reduced well below the maximum of 25% and to the extent that there is any need for mathematical precision I will be adopting a discount of about 10% for those matters. 17. The trial involving the complainant, AJ, commenced on Monday 5 March 2018. She gave evidence by closed‑circuit television from a remote location and it was not necessary for her to be brought to Queanbeyan to give that evidence. The offender and his counsel did not object to that course. Her evidence completed by the second day of the trial. As I recall it the Crown case had in fact closed and there was an indication that the accused was going to give evidence. It then became obvious that there was some difficulties in relation to the charges and the possible availability of alternative counts especially complicated by the age of the offences, the myriad change of legislative provisions about halfway through the date range alleged, the fact that an alternative charge available at the beginning of that date range was carnal knowledge but after 23 March 1986 was an offence contrary to s 66C(1) and the fact that there was a prohibition on commencing proceedings for carnal knowledge more than 12 months after the date alleged as the commission of the offence. 18. This led to the juries being discharged. The trial was recommenced on Wednesday 7 March but following negotiations between the Crown and the offender's representatives he ultimately pleaded guilty to the two counts in the indictment, counts 4 and 6 that day. The Crown accepted these pleas in full discharge of that indictment and I was informed that this was done after consultation with the victim, AJ, who had some limited understanding of the legal complexities involved. 19. The plea of guilty thus to these offences is very late in fact after the complainant had finished her evidence and was about to give it again. The Crown argues that there should be no discount representing utilitarian values in the circumstances for this plea. Whether or not that is so it seems to me is. There is some utilitarian value in the plea of guilty. The trial did not have to rerun but what is more the plea has meant that the complainant, AJ, was able to know that the accused publicly admitted his guilt which is a matter which will presumably assist her in her ultimate healing. 20. The facts relevant to all of the offences are set out in agreed facts tendered for both groups of offences. There is a common background. The offender, David Ford, is now aged almost 70 having been born in October 1948. He moved to Cooma sometime in about 1974 to 1975. He lived with the parents of the complainant, GM, for about two years before moving into his own accommodation in Cooma. They remained friends and had been friends previously in Sydney. He worked consistently whilst in Cooma in a number of different jobs including in a sports store and at Grace Bros. He later established a hair salon in Cooma which he sold and then later had another hair salon called "David's of Cooma" which he operated from Hain Centre in Cooma. He moved into his residential premises in Cooma sometime before 1984. 21. Further specific facts for the individual complaints are as follows; for count 1 the complainant AR was born in May 1975. He moved to Cooma with his family when he was young. As I have said his parents were a friend of the offender and it was through that friendship that he met him. 22. For counts 2 and 3 the complainant GM was born in June 1979 in Cooma. As I said the offender initially lived with his parents when he moved to Cooma and had been friends with them previously in Sydney. The complainant then knew the offender from when he was young. The offender visited their home and sometimes cut his hair. The complainant would also visit him at his house, sometimes with his parents and also would go around town with the offender from time to time. 23. For counts 4 to 15 inclusive the complainant GJ was born in May 1980. He met the offender when the offender was working at Grace Bros in Cooma when he would go shopping there with his mother. When GJ was about ten or 11 he would then go to Grace Bros with his brother and visit the toys and games section there and spend some time with the offender. On an occasion he went by invitation of the offender with his brother to swim at a friend's house which had a backyard pool. 24. After the offender opened his hair salon GJ's mother arranged for him to have his hair cut there and he also went to the offender's house to have his hair cut and also to mow his lawn. 25. For count 16 the complainant GF was born in June 1983. He moved with his family to Cooma when he was about five. He met the offender through another young boy who was a friend at the offender's hair salon when he was about 14 or 15. Sometimes he went with the offender to the Royal Café at the Hain Centre at the offender's invitation. 26. For the second indictment involving the female complainant AJ she was born in Cooma in December 1970 and lived with her parents not far from the offender. She met him when she was about 11 or 12. She was very involved in sports at the time and met him when he worked at a sports store in Cooma which she visited and he introduced himself to her. 27. I am now going to deal with the subjective case of the offender slightly out of order because I will factor in all relevant issues including the subjective case for the offender when discussing each of the offences and determining the relevant sentences for them. 28. The offender is now almost 70. He will turn 70 in October this year. He has no criminal record. Whether or not it is open to treat him as a person of prior good character it seems to me is a moot point. S 21A(5A) of the Crimes (Sentencing Procedure) Act as it currently applies would prevent that if in fact he had used his prior good character to enable him to commit these offences. The evidence currently before me would not allow me to make such a finding beyond reasonable doubt which, in my view, would be necessary but it is not, in my view in this case, open to the offender to argue as a mitigating factor that he is a person to be treated as prior good character. 29. In any event it is unlikely that these more recent provisions of the Crimes (Sentencing Procedure) Act apply to these offences because of the ages of the offences. The reason why I make the finding that it is not open for the offender to be treated more leniently on the basis that he is a person of prior good character is that in fact these offences were committed over a period of at least ten years and at least from the time that he committed the offences against AJ and onwards he continued to do so in relation to each of the other complainants. That, of course, means that he was not at the relevant time a person of good character. 30. However, he did not have any prior convictions and that is certainly the case nor have there been any since. There is no evidence that this behaviour continued after the offence involving GF. So he has had 20 years in the community without offending and had no offending behaviour before the offence involving AJ. That does not make him, in my view, a person of good character to the extent that it is a mitigating factor but it is a relevant factor in determining his prospects of rehabilitation. 31. He has a myriad of medical problems. He suffers from insulin dependent diabetes; he has had an ischaemic heart disease diagnosed in 2003; he has chronic back pain radiating to his left side; he has severe osteoarthritis and in the past has had bilateral knee replacements; he has renal calculi; he suffers from asthma; he has an oesophageal condition requiring treatment; he also apparently suffers from high cholesterol and high blood pressure, all this material before me by way of medical reports tendered on his behalf. 32. He will, without doubt, require ongoing treatment in prison for these conditions and I am already aware from the fact that Corrective Services did not conduct any medical assessment of him from the time I refused bail last Wednesday, 7 March, until the day that he was due to be sentenced by me on Tuesday this week that it is likely that he will not be provided these services in a timely fashion whilst he remains in prison. He has mobility problems and uses either a stick or a walker. He takes large quantities of medication including insulin for insulin dependent diabetes. The list of medication is provided in the reports tendered. 33. The Court has extensive knowledge of the fact that the administration of medication to inmates can often prove difficult and particularly so if other inmates perceive, in this case wrongly, that some of those medications taken by an individual might have psychotropic or other properties that they desire. It seems to me based on my experience as a judge of 22 years that it is unlikely in the extreme that he will be permitted to access this wide range of medication himself without supervision. It is also likely on the basis of my experience that he will spend some if not all of his prison term on protection because of the nature of these offences. 34. This combination of factors, namely, his medical, the need for ongoing and extensive medication and the likelihood that he will serve his term of imprisonment on protection I accept means that his experience of custody will be more onerous than by others in the prison population, increased by the fact of his age and decreased mobility. 35. Further he was meant to have some surgery, he was on the waiting list for elective gastroscopy when at large in the community. As I have said he suffers from an oesophageal condition which requires monitoring. Whether or not that will be made available to him in the prison service is an unknown question and in the experience of this Court a positive answer to that question is not always forthcoming in reality. 36. I have, when making these determinations, read and taken into account all of the medical reports tendered. 37. There are three references tendered on his behalf from members of the community. He is entitled to have those character references taken into account. Each of the referees acknowledges that he is aware of the charges that the offender is facing and none of them seeks to minimise the seriousness of that offending. None of these people, it would appear, knew him during the time he was committing these offences. I accept from those references that since the time he retired he seems to have been leading a good and relatively unremarkable life in Cooma undertaking community work. He has assisted the elderly in his community, including his own mother who was in a nursing home, much of the other responsibility for her care fell to him. 38. Once he was released to bail it was on strict conditions which required him to move away from Cooma and he has been living in Sydney in the Campbelltown area with area with a cousin since being released to bail. That is for almost exactly two years. His bail conditions have been strict, requiring three times weekly reporting. It was also a condition that he not visit Cooma and so on occasions when he has been able to see his elderly mother that has only been in circumstances where she has been able to travel to do so. As I understand it she is into her 90s and her ability to do so in the future must be extremely limited. 39. He has for at least a number of years now been involved in the church including on the South Coast and now in the Campbelltown area and there are references from members of those two congregations including a chaplain speaking highly of the character of the person they now know and giving reasons for that view. As I have said they do acknowledge, however, the seriousness of his offending and as I read their references none of these people knew him at the time he was committing these offences. 40. On all of that evidence it seems to me that his prospects of rehabilitation are good. He is unlikely to reoffend in this way for a combination of reasons, perhaps the most significant being his age and medical condition. But further I am buoyed in that finding by the fact that he has not continued to reoffend in this way for 20 years. 41. The sentences that I impose, of course, must send significant messages of general deterrence for offences such as this and I will deal with that in more detail soon. 42. So I now then turn to the specific facts for each count. Dealing first with the second indictment, those involving the female complainant AJ, counts 4 and 6. These offences both occurred at the same time, sometime between March 1986 and December 1986. I have already set out the factual basis on which she came to know the offender when she visited the sports store where he worked and the regular contact thereafter. By the time of these offences the complainant had started to spend time at the offender's hairdressing salon, initially she was about 12 or 13 years old and was 15 at the time of these offences. There was a time when the offender suggested to her that it would be easier if she had her hair cut at his house and so she took him up on that offer. This was not uncommon. He cut her hair on his verandah. He started to ask her questions about whether she had ever been kissed, she was only 13 at the time. He was in his late 30s. He then asked her to help him out in the garden and asked her questions of a sexual nature. He asked her if she had ever watched a pornographic movie. He set up an arrangement whereby she knew she could visit him if his verandah light was off and that the door would be ajar and she could let herself in. That occurred on one night before the specific offences and when she went inside the offender put on a pornographic video and played it for a short time. At the time AJ had very little knowledge about sex and he talked to her about what was happening on the movie. After that she used to visit him regularly and on occasions the offender gave her beer or wine to drink. He engaged in some sexual activity with her on these occasions. None of these events are the subject of any specific counts and amount to evidence in which the specific counts can be seen in their true context. 43. The specific counts occurred in circumstances where sometime after Easter in 1986, when the complainant was 15, the offender invited her to visit his house in the evening after she had finished babysitting nearby. She adopted the same course as normal checking to see if the light was off and then went inside. He told her that he had a present for her and showed a vibrator and told her he would show her how to use it. He removed her shorts and underpants and inserted the vibrator into her vagina and turned it on. He left it operating in her vagina for a time before removing it. That is count 4. He then removed his own pants, put on a condom on his erect penis and had penile/vaginal sexual intercourse with her. That is count 6. 44. These are serious offences. They amounted to full vaginal penetration, first by a vibrator and then penile/vaginal penetration. On the basis of the agreed facts tendered it cannot be viewed as an isolated offence and there had been engagement with her leading up to these offences I accept in the nature of grooming, having her attend his house for mowing and the like. This is about the middle in terms of factual circumstances for offences of this type but, of course, it must be remembered and borne in mind that the maximum penalty for this offence at the relevant time was eight years. 45. I have read and considered a victim impact statement prepared by AJ. I accept that she has suffered adversely as a result of this offence. The impact on her I accept from that victim impact statement mirrors the Court's experience regrettably over many decades of the deleterious impact that child sexual assault has on victims. She believes, I accept, that it has adversely affected her ability to form appropriate relationships and her relationship with her children. I do however note something positive in that victim impact statement, which is that she believes that since giving evidence in the trial only last week that she feels a sense of relief and that she is now in a position to take back her position of power and her life. It is to be hoped that this is true. 46. I will come back to the relevant sentence for this offence in due course. 47. Turning to the facts for the other offences. Count 1 occurred when the complainant was about 12 or 13 years old, between 1987 and 1989. The offender came round to his family's home for a visit, he was friends with his parents. When the offender arrived the complainant was home, his mother was at home somewhere in the house but his father was still at work. At one point the offender and the complainant, AR, went to the rumpus room and there was no one else there. The offender approached AR and said these words, "You're bad I'm going to have to do this to you". He reached out and put his right hand down the complainant's shorts and inside his underwear touch his penis and scrotum. He fondled the young boy's penis for about a minute before AR physically pushed his hand away and told him to stop. He told the offender to leave the house which he did. AR did not tell his parents about what happened and the family remained in contact with the offender not knowing what had occurred. 48. This is a serious offence. The offender was in a position of trust, vis a vis the complainant, who was only 12 or 13, not only because he was at the time a man in his 30s but he was as known to the complainant a friend of his parents. The offence was committed in his own home where he was entitled to feel safe which aggravates the objective criminality. It was also accompanied with a comment that was, on my finding, designed to make the complainant feel that he was somehow responsible for the sexual contact. It was, however, on the facts before me entirely opportunistic but it was also for that matter very brazen given that the complainant's mother was somewhere in the house. It lasted for a very short period of time and he stopped when the complainant pushed him away. The complainant told him to leave and he did. On these facts it is not towards the top of the range for offences capable of being charged under this section but in fact towards the bottom of the range in my view. 49. I have read and considered the victim impact statement provided by AR and read onto the record. It makes for very sad reading. He has, I accept, encountered considerable difficulties in his life and on the face of his victim impact statement only now as a man in his 40s is getting his life together. I understand from his victim impact statement that he has sourced the cause of all of his life's difficulties to the sexual assault by the offender and I acknowledge that this is his view. Of course there are always causation issues arising in relation to all matters such as this and if there were evidence to prove this extent of injuries which the victim himself perceives as a result of this offence then it could arguably amount to an aggravating factor. But the evidence is not before me in that form and nor does the Crown argue that I would find that the injuries are to that extent. I have in fact read and considered his victim impact statement and acknowledge the pain that he continues to feel. That again I indicate is consistent with the knowledge of this Court acquired over decades of the likely long term impact of sexual assault on children. 50. The maximum for this offence is four years. This is around about the middle of the range for offences of this type. The decision of the Court of Criminal Appeal in PWB v R [2011] NSWCCA 84 is instructive in relation to the appropriate sentence for this offence. It is not the same factually, the offender was much younger but with closer familial ties. The act of indecency was different. But as for that offence I take into account that the sentencing regime at the time would have meant a non‑parole period of about one‑third being applied to the appropriate overall term. 51. I have concluded that because of all of the circumstances surrounding this offence to which I have already referred, and having taken into account the subjective case and the pleas of guilty and all other factors, full time imprisonment is necessary albeit that the range of penalties at that time for an offence such as this sentenced alone may have been something less than full time. However it is not being sentenced alone and it cannot be seen as a one off isolated offence and this must be full time custody. But the starting point could never be more than between 18 months to two years given the range of sentences then imposed and the maximum penalty taking into account what would have been the non‑parole period at the time it translates my view appropriately here to a fixed term of six months for this offence. 52. Counts 2 and 3 as I have said relate to the same complainant, same victim GM. They occurred sometime between November 1991 and February 1992. The victim was about 12 and he was staying overnight at the offender's home. They had dinner and during the evening the offender played a pornographic movie on television showing men and women having sex. The victim was seated on a beanbag on the floor in the lounge room, the offender was behind him and reached over and pulled the front of his pants down. He took hold of his erect penis with his hand and held it for a time. He said to him words to the effect, "We're mates I'm going to ask you to do something, do you trust me". The victim agreed. The offender asked him to take all his clothes off, he did so because he trusted the offender. He then took him outside to the backyard of the house and told him to be quiet. Once in the backyard he took hold of the victim's penis with his hand and pushed up his chin with his other hand and said words to the effect, "Do you trust me, are we mates". He held his penis for about five seconds and then let go and walked back to the house. The victim stayed in the house that night but never went back again. 53. The victim's parents became aware of this incident in May 1993 and discovered that it had occurred sometime about a year before or little more. The victim's father spoke to the offender about what had happened, he initially denied it but then admitted that they had occurred. These are the same incident, as I have said the complainant was about 12. They are also serious. There was some planning in my view in that there was a pornographic video shown to him which can only have been for the purposes of making him more receptive to sexual advances. Further this is a significant abuse of trust, not only because he was an adult in his early 40s, but also because the complainant's parents were long‑term friends of the offender which was known to the complainant. It is a gross violation of trust and no doubt viewed as such by parents who in good faith allowed their child to stay overnight with the offender. 54. There is, however, in looking at the other surrounding circumstances of the offending no suggestion that any physical force was used to persuade to GM to stay at the house and in fact he apparently did so without further incident. It is in about the middle of the range in terms of objective seriousness for these reasons. 55. I could not on the evidence find that the offender planned the visit with the intention of sexually assaulting the complainant and it would appear that he took advantage of his presence to do so. 56. The sentence for each of these two offences, given that they form the same incident of criminality should be the same. One is no more serious than the other. There is no victim impact statement for this complainant but I do accept that for this, like all other child sexual assault offences, the complainant is likely to have suffered from emotional harm as a result. 57. The maximum penalty for this offence is seven years. Taking into account an appropriate starting point and a small discount and the sentence pattern at the time I have determined that fixed terms of 12 months area appropriate for each of these offences. 58. The following counts, 4 to 15 inclusive, involve the same complainant GJ and cover four separate incidents. Count 4 is one incident. As previously stated the complainant's mother had arranged for him to have his hair cut at the offender's salon, after that the complainant started to go to his home to have his hair cut. As I have said this was not unusual and others did that as well. The complainant was about 12 or 13 the first time he went to his house for a haircut and was with his mother and brother. The offender asked him if he would mow his lawn for a fee. He did so at a later occasion being dropped there by his mother. The offender asked him to do so again about two weeks later and when he finished the offender asked him to come inside the house then asked him to sit on a beanbag on the floor in the lounge room. A short time later the offender came into the room with a bottle of massage oil and sat next to the victim and asked him if he wanted a massage. He put some massage oil onto his hands and then put his hands up the victim's shorts and started masturbating him. The victim did not gain an erection so the offender put some pornography on the television and continued to masturbate him for a period of time. He stopped doing so and they both went to the bathroom and washed the oil off their hands. 59. Following this the offender, who is a type 1 diabetic, produced a diabetes test kit which contained a lancing device. He held his own thumb and pricked it with the device and also held the victim's thumb and did the same. After blood had been drawn from them both he pressed their thumbs together and said words to the effect, "We can't tell anyone about this, we're blood brothers now". This is something that he did frequently with this complainant. The complainant left shortly after when collected by his mother. 60. That is count 4 in the indictment, it is serious but below the mid‑range in my view. He did take advantage of a trusting relationship between the victim and himself. The victim was there to earn some money as a young boy between 12 and 15 but more in my view towards the bottom of the range of that age date so younger, which has some impact on the objective seriousness. He also engaged in this ritual in an attempt to have the victim keep their activities secret which indicates a degree of planning for future offences. 61. The maximum penalty for this offence is seven years. Doing the best I can and also dealing with this in much the same way as I dealt with counts 2 and 3 I have determined that a fixed term of 12 months imprisonment is relevant for this offence. Counts 5, 6, 7 and 8 relate to the same incident a few months later. 62. Following that first offence the victim spent a lot of time at the offender's salon. There was a back room in that salon which was usually only accessed by the offender and the complainant was not allowed entry. At some time the offender asked the complainant to go into this room with him, he told him there was a sign in the room that required painting. This I accept was a ruse so that he could engage in sexual contact with him. The complainant went into the room and the offender started rubbing his crotch on the outside of his pants and then placed his hands inside his shorts and fondled him on the penis and scrotum. This is count 5. The offender then left the room and came back carrying a bottle of moisturiser, he started to masturbate the complainant whose penis became erect. This is count 6. The offender then exposed his own penis through the zipper of his pants and put some moisturising cream onto the victim's hand and made him masturbate him until the offender ejaculated into a white cloth. That is count 7. He then again masturbated the complainant who also ejaculated. That is count 8. After these activities he gave the complainant a packet of cigarettes and also left a packet in the salon in a way that could be seen by the complainant which I accept the complainant understood would mean he would be able to get that second packet of cigarettes on a future occasion. The complainant was between 11 and 15 and the offender was in his mid-40s. 63. The complainant's mother had obviously allowed their son to spend time with him without any knowledge of this behaviour. He took advantage of her trust and his. 64. These offences also represent an escalation in the seriousness of sexual assault of this victim moving from just touching him to mutual masturbation with ejaculation. 65. These four offences represent one episode of criminality, in my view it was unnecessary to bring four charges to represent this episode of criminality. It could have been a minimum of two. The whole of these proceedings has been unnecessarily complicated for a variety of reasons and this is just one of them. 66. The sentences for each should in fact be the same. An absolutely minute examination of each offence may display some difference as to criminality but that sort of examination is not necessary. For offences of aggravated indecent assault they are about the middle of the range in terms of objective criminality in my view. 67. Taking into account what I understand to be the pattern of sentencing at the time for these offences I have concluded that each should have a fixed term of 18 months and each of them should be concurrent with the other. 68. Counts 9 and 10 are another separate episode involving GJ in the back room of the salon and occurred about three days later than the events for counts 5, 6, 7 and 8. The complainant frankly said in his statement, and it forms part of the facts, that he had run out of cigarettes and so went back to the salon. That was the reason I accept that the offender put them there in a position for the complainant to see them following the first incident in the back room. The offender took him to the back room again and got some moisturiser. He had the complainant masturbate him using the moisturising cream until the offender ejaculated. That is count 9. He then used the moisturiser to masturbate the complainant until he too ejaculated. That is count 10. He was aged between 11 and 15. The complainant then took the other packet of cigarettes and left the salon. There is little, if any, difference in terms of criminality between this and the earlier incident in the back room. The same penalty it seems to me would be appropriate, namely 18 months fixed term for each. 69. Counts 11, 12, 13 and 14 are a separate occasion during this overall period . On this occasion the offender invited the complainant to come to his home to mow his lawn. The complainant arrived and waited outside on the verandah. The offender then went to his car and took out a paper bag. There were two vibrators, referred to as vibrating sex toys, inside that paper back. He took the complainant inside the house to the lounge room. They both sat on the floor. The offender took out the two vibrators. He removed the complainant's trousers and underwear and then placed a large amount of massage oil onto one of the vibrators. He rubbed it around the complainant's penis and scrotum for a while and also rubbed his penis and scrotum with his other hand. He rubbed the vibrator to the area of the complainant's anus. This combination of touching is count 11, the aggravated indecent assault. 70. As he was rubbing the vibrator around his anus he attempted to insert it into the anus but it caused the complainant pain and he pulled away and said, "Ouch". He continued to massage his genital area with his hand. This attempt to insert the vibrator into the complainant's anus is count 12. 71. The complainant was not able to attain an erection and the offender put a pornographic video on the TV and started to masturbate the complainant until he became erect and ejaculated. That is count 13. 72. The offender then pulled down his own pants and put massage oil onto the complainant's hand requiring him to masturbate him until he too ejaculated. That is count 14. 73. After these offences occurred he gave one of the vibrators to the complainant and told him it was his. He suggested that he practice on himself so that it would not be so painful in the future. 74. Count 12 is, of course, by far the most serious of any of the offences faced by the offender for these matters because it carries a maximum penalty of 20 years imprisonment. It is a charge of attempted sexual intercourse without consent, knowing that the complainant was not consenting, in circumstances of aggravation, namely that he was under 16. It is, as I have said, the most serious offence faced by the offender. 75. These four offences occurred at the same time sometime between January 1992 and May 1996 when the complainant was between 11 and 15 but more probably towards the later part of that time period. I accept that the victim by then had been well and truly groomed by the offender with previously the provision of cigarettes and knowing that he would have access to pornographic videos. The victim was well under the age of 18 and thus at the time not legally capable of giving consent to sexual intercourse. 76. The offender had planned for this offence, count 12, and the surrounding indecent assaults by obtaining the two vibrators and organised for the complainant to be present at his house I accept on the pretext of mowing his lawn. Yet again he took advantage of the position of trust the complainant had in him, exacerbated by the grooming when he was a man in his middle 40s. This was ongoing grooming behaviour and a gross violation of that trust. He was also clearly grooming him for future anal sexual intercourse it seems to me. 77. These offences are, at the least, in the mid‑range in terms of objective seriousness in my view. The indecent assaults themselves are probably not factually vastly different to the earlier ones, but the attempt sexual intercourse without consent is a serious offence. 78. As I have said, the maximum penalty was 20 years imprisonment. It still is, but there is now a standard non-parole period for this offence. That was not relevant at the time. The sentences for that and the surrounding indecent offences must be full-time custody. It is hard to discern a sentencing pattern. I have looked at the list of cases published by the judicial commission and the statistics relevant for this offence committed before there was a standard non-parole period. There is no doubt that sentences for offences such as these have increased over the years. The introduction of a standard non-parole period of ten years for this offence would seem to mark the beginning of a significant increase in sentences. 79. As well as taking into account the statistics published by the judicial commission and the list of cases referred to in those statistics, I also take into account the fact that I was the sentencing judge in this court from 1996 onwards and I have seen both that increasing trend and also have some memory of the range of sentences at the relevant time. 80. Many of the cases published by the judicial commission or referred to by the juridical commission statistics involve aggregate sentences which are not available to me, but in circumstances where indicative sentences have been given. If there is a sentencing pattern obvious, it would seem to me that an overall period for an offence that is at about the middle of the range and certainly not towards the top of the range of about six years was an average indicative sentence. That of course would be for offences of actual sexual intercourse without consent. This was an attempt. In all other respects however, it is towards the middle of the range. 81. I have concluded that taking into account that this was an attempt and a small discount for the plea of guilty, that an overall sentence of five years is called for for this offence. 82. The sentences for this and the surrounding indecent assault charges should be concurrent with each other. 83. On the same basis as previously and on the basis that the indecent assault surrounding this sexual intercourse offence, in large part are very similar to the other indecent assault offences involving this complainant, GJ. I will be fixing fixed terms of 18 months for those offences. 84. The remaining offence for GJ is count 15. This occurred on a later occasion in the date range when the complainant visited the offender at his salon. The offender gave him a piece of paper with his home number on it and asked him to call later in the day. The complainant did so that evening about 6.30 from a public phone box. 85. By arrangement, the offender arrived at the phone box and collected him and drove him back to his house. They went inside and the complainant lay on the floor at his request. The offender laid down next to him and began rubbing him on the crutch on the outside of his pants. The complainant obtained an erection and the offender pulled down his pants and put a condom on the victim's penis. He also put a condom on his own penis. They were lying with their heads at each other waists at the time. The offender then moved him away so that the complainant started to perform oral sex on him and the offender ejaculated into a condom. The complainant stopped and the offender told him to continue. He declined. The offender said, "Well if you're not doing me I'm not doing you." He took the condom off the complainant's penis and nothing further occurred. So he then engaged in the blood brothers ritual that had occurred previously and the complainant left. 86. As I have said, it seems to me that this occurred probably towards the end of the relevant date range when the victim was more towards the age of 15. 87. This is a separate count of sexual intercourse but is not a s 61J offence. Though the complainant was not legally capable of consenting, the Crown would none the less have had to prove beyond reasonable doubt that he did not would have been factually difficult. The decision to prefer what was in any event an available alternative count and accept a plea of guilty is a recognition of that. 88. At the relevant time the maximum penalty for this offence of sexual intercourse with a person between 10 and 16 was only eight years, which is somewhat anomalous but that was the situation at the time. Currently, if the victim had been between 14 and 16, the maximum penalty would be ten years with the standard non-parole period of seven years, which is also somewhat anomalous given the definition of standard non-parole period. But these are fortunately matters which I do not need to consider. I am to sentence in accordance with the maximum penalty at the time and on the same sentencing pattern if that can be discerned. Objectively, this offence is in my view, below the mid-range in terms of objective seriousness for s 66C offences. 89. More probably than not as I have said, the complainant was towards the end of the age range, that is closer to 16 than 11. The nature of the sexual intercourse did not involve penetration, certainly not anal penetration and while of itself serious, is not objectively as serious as penetrative sexual contact. 90. While the victim was not in fact capable of giving lawful consent, his engagement with the offender was non-oppositional. This was in large part because he had been groomed over some time by the offender to ensure that he did not refuse to participate. It was planned because he gave him his phone number at the salon and yet again, the offender was in his mid-forties, dealing with a teenage boy with whom he was in a position of trust. The offence was grubby, illegal and again, a gross violation of the trust which all adults have towards all children. He also behaved manipulatively and petulantly at the end of the encounter. 91. I have looked at the range of sentences, including the table of cases published by the judicial commission and also the statistics. They are not necessarily helpful because the range of statistics, even for old offences pursuant to s 66C seem to indicate a range of sentence extending well beyond the maximum of 8 years which would have been available. But doing the best I can from that range available and no doubt, apply to the whole range of s 66C offences, including those involving sexual intercourse with much younger people where the maximum penalty is higher. Doing the best I can from these sources and again, relying on my own experience as a sentencing judge from 1996 onwards, I have concluded that a sentence of 3 years overall is appropriate and will also deal with the relevant non-parole period in due course. 92. The last offence in this indictment is the indecent assault which is count 16. It is towards the bottom of the range in terms of objective seriousness in my view. It occurred in circumstances where GF had met the offender at his salon a number of times when he had been there with another young friend. GF was about 14 or 15 at the time going into Year 10. During the visits the offender would give the two teenagers alcohol which occurred when he visited the offender's home at his invitation. The visits to his home and salon increased to the point that GF was visiting about three times a week. The offender also started to show GF heterosexual pornographic movies involving group sex on occasions when he visited his home. 93. On one occasion the offender invited the victim to visit his home alone. He went there and found the door ajar. He knocked and was told to come in and the offender told him that he was in the bathroom. He called the victim into the bathroom and he saw that the offender was sitting in the bath naked. The victim then left and went into the lounge room. He called him back but he did not return and stayed in the lounge room. The offender then walked into the lounge room with a towel wrapped around his waist. He went over to GF and told him to close his eyes and said words to the effect "Trust me, I'm trusting you not to watch" and further said "I'm trusting you not to open your eyes". 94. The victim did close his eyes. The offender then unwrapped the towel so it fell to the floor and he was standing naked in front of GF who heard the towel fall to the floor but did not see him because he still had his eyes closed. The offender moved closer to the victim and started rubbing him on his chest for a period of time until the victim pushed past him and ran from the house. 95. There had obviously been some grooming of him during the previous contacts including the provision of alcohol and showing pornographic videos. The indecent assault, the subject matter of this offence, is the offender's hugging the victim whilst he, the offender, was naked. The victim does not say he could see his naked body but knew that it was because he heard his towel fall to the floor. It is apparently clear that this was meant to be just a preamble to other activity but the complainant ended it by leaving. 96. The offender admits this by his plea of guilty including therefore an admission that there was a sexual component to the hugging. Again the offender was engaging the victim's trust and he abused that trust. The offence was brief but no doubt the complainant felt somewhat frightened by this incident but fortunately nothing else happened. 97. There is a group of cases provided to me to provide some guidance in relation to the relevant sentencing pattern for the s 61M offences at the relevant time. As I have said it is difficult to discern a pattern from that group of sentences because on the whole they are for far more serious offences. This is not a serious offence of aggravated indecent assault. 98. Drawing on my experience as a sentencing judge of this Court towards the late 90s it seems to me that it is unlikely that if this were being sentenced alone there would have been a sentence of full-time custody imposed. It would probably have been dealt with in the Local Court with a s 9 bond imposed. That is not the appropriate sentence here in the circumstances where he will be in custody and I am buoyed in my approach to the sentence here by the way in which the resentencing was approached by the Court of Criminal Appeal in the PWB case. 99. Alternatively a s 12 bond might have been employed on a suspended sentence basis but again that cannot occur here because he will be in custody. Just like the Court of Criminal Appeal in PWB it seems to me that the only realistic is a short fixed term which I will impose for three months but I will make it entirely concurrent with some of the other offences bearing in mind these findings. 100. I just now turn back to the appropriate penalty for the offence involving the complainant AJ. It is very difficult to discern a pattern of sentencing for sexual intercourse with a child between ten and 16 at the relevant time. For her offence there is virtually no discount. Using the same sources to which I have already referred and doing the best I can I have concluded that an overall term of about four years is appropriate for her sentence. 101. I repeat, these are all very serious offences. They represent sexual offending against five young people aged between 11 and 15 over a period of 12 years when the offender was aged between 36 and 49. They involve both a girl and boys. In all cases he displayed a sexual interest in young teenagers especially teenage boys. He persuaded them to engage in sexual activity with him on occasions by giving many of them alcohol. On other occasions by showing some of them pornographic videos to encourage them to engage in sexual activity with him and on another occasion by providing cigarettes and the promise of further cigarettes. He encouraged them to attend his hair salon and his home sometimes providing free haircuts and on occasions under the pretext of having them helping him mow the lawn or work in the garden. He knew that all of these young people were under 16 and were possibly as young as 12. 102. Adults should not engage children in sexual activity. Children ought to be able to trust adults to treat them as children, not as sexual objects and adults should not breach that trust. There was an overall sense here of some grooming behaviour. The offender knew full well that young teenagers would be beguiled by the chance of having alcohol away from the constraints of their parents and would have been curious to watch pornography. He took advantage and curiosity to groom these children and sexually assault them. 103. I have already referred to the victim impact statements read, received and considered for two of the victims. The third of them GJ has provided a victim impact statement and there is some further evidence to support some of the assertions made by him. 104. I accept from the independent evidence of the psychologist that GJ has suffered considerably as a result of these sexual assaults including now suffering from post‑traumatic stress disorder for which he is receiving treatment. He clearly has had a troubled life for a long time which again, as in the case of AR, he sources to this sexual assault. 105. Whether or not there is a victim impact statement and for two of these victims there is not I accept, nonetheless, on the basis of the Court's accumulated knowledge and the knowledge of the community that victims of these offences are likely to suffer significant damage. The Court acknowledges the harm that each of these victims of these crimes has and is likely to have suffered. 106. Over the years, as I have said, this Court in particular has accumulated a wealth of knowledge about the serious long term effects that sexually assaulted children is likely to produce. Clearly the impact is sometimes greater or lesser but almost inevitably, as has been stated both here and the United Kingdom, it is a truism that sexual abuse of children will inevitably give rise to psychological damage. 107. Specially in relation to GJ I accept that as a result of these offences he presents with symptoms consistent with post‑traumatic stress disorder. He still suffers from these and they take the form of a recurrent fear associated with seeing a certain colour resulting in headaches, nausea and hyper arousal. He has had difficulty with ongoing relationships and with his family members and it has particularly impacted on his relationship with his son. 108. This Court has observed that child sex offences have profound and deleterious effects on victims for many years if not all of their lives. As has been observed by Baroness Hale of Richard the now Chief Justice of the United Kingdom sexual assault of children produces long term and serious harm both physical and psychological which premature sexual activity causes. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. That is the reason why each of these offences, albeit some more so than others, is serious and why it is appropriate in each case that there be a term of full‑time custody. 109. Of course the sentences must also take into account other factors not just the circumstances involving the victim and not just the particular circumstances of the offending. They must, as I have said, also take into account the circumstances surrounding the offender, that there be an element of general deterrence, that factors are taken into account in relation to his prospects of rehabilitation and remorse and contrition. 110. He has not given evidence. There is no evidence therefore from which I could accept definitively his remorse and contrition but it seems to me that in this case his pleas of guilty are clear evidence of that remorse and contrition. Some of these charges would have been more likely than others to have led to convictions by a jury in my view and the offender's pleading guilty when he did indicates some remorse and contrition on his part as does the fact that he publicly acknowledged his guilt by pleading guilty in this Court. 111. I then turn to the very difficult task of trying to determine what the overall sentence should be. I have already indicated what each of the relevant sentences should be for each of the 18 counts. If they were to be ordered to be served concurrently with each other the sentence would be one of over 20 years. That is significantly in excess, in my view, of what is appropriate taking into account, in particular, the sentencing patterns at the relevant time. There should be some partial accumulation to give rise to the totality of offending here. 112. I have ultimately concluded that adopting that task, the overall term of imprisonment should be one of 8 years with an overall non‑parole period of 5 years. I am going to try and do that, but I acknowledge at the outset that the mathematics may well be flawed and I am going to require some assistance from the bar table, perhaps giving them the last opportunity to do so in this sentence, to make sure that there are no holes in the sentence. 113. As I said it seems to me that the sentence in relation to the complainant AJ that is counts 4 and 6 should be 4 years. This was in the 1980s. That would have been the head sentence. There would have been a non‑parole period of somewhere around a third to two thirds. I have thus determined that there should be a fixed term of 2 years for those offences. It will be the first. I will commence it from 2 March 2018, which takes into account the five days in custody spent bail refused leading up to 7 March when this matter was to have been sentenced. 114. So then for each of counts 4 and 6 in the indictment dated 7 March 2018, having already convicted the offender there will be a fixed term of 2 years commencing 2 March 2018 expiring 1 March 2020. I decline to set a non‑parole period as it will be part of an overall non‑parole period. 115. Count 1 in the indictment of 28 February, I have already convicted him. There will be a fixed term of imprisonment of 6 months commencing 2 December 2019 expiring 1 June 2020. 116. For counts 2 and 3 in that indictment fixed terms of 12 months each from 2 March 2020 to 1 March 2021. There will also be a concurrent sentence for count 16, a fixed term of 3 months commencing 2 March 2020 expiring 1 June 2020. 117. The remaining counts are all in relation to the complainant GJ. There is every reason why there should be some partial accumulation amongst the groups of offences relating to the offender GJ, however achieving that with mathematical precision is probably unnecessary and what I have decided to do is to fix a separate sentence for count 15, the s 66C offence, and a separate sentence for count 12 but for all of the other indecent assault offences, for which I have indicated 18 months is the appropriate fixed term, to sentence those concurrent with the s 61J sentence. 118. The length of the sentence that I will impose for sequence 5, the s 66C offence, will be a fixed term of 18 months which I calculate having used what I accept to be the appropriate overall term of 3 years, which I indicated already in this Judgment. Bearing in mind that a non‑parole period would be appropriate to set, whether that was then called a non‑parole period or a minimum term and additional term I do not know and can no longer recall, but in any event it seems appropriate to deal with that matter by way of a fixed term of 18 months to reflect what would have been a minimum term or non‑parole period but treated as a fixed term in the circumstances. I will commence that fixed term, therefore, for count 15 a fixed term of 18 months' imprisonment commencing 2 December 2020 expiring 1 June 2022. 119. For count 12 I make a finding of special circumstances. They are that there is partial accumulation and further the conditions of imprisonment will be served more onerously because of his age and medical condition. I therefore set a non‑parole period of 2 years commencing 2 March 2021 expiring 1 March 2023 with parole thereafter of 3 years commencing 2 March 2023 expiring 1 March 2026 giving rise to an overall term of 5 years commencing 2 March 2021 expiring 1 March 2026. 120. For count 4 there will be a fixed term of 12 months commencing 2 March 2021 expiring 1 March 2022. 121. For counts 5, 6, 7, 8, 9, 10, 11, 13 and 14 there will be fixed terms of 18 months commencing 2 March 2021 expiring 1 September 2022. 122. I acknowledge that there is a degree of artificiality in the way in which these sentence dates have been structured, but the intention is to give rise to an overall non‑parole period of 5 years with an overall term of imprisonment of 8 and I hope that those sentences therefore start on 2 March 2018 with the earliest date available for release to parole being 1 March 2023 with parole thereafter of 3 years, and hopefully with no holes.. If I had been able I would have set an aggregate sentence but I cannot because of the date of these offences. 123. Well if there are it is obviously an oversight, a mistake and one that could be cured by the matter coming back under what is known as the slip rule, because it is simply a mistake, well from my perspective anyway, a mistake made in trying to calculate a way of accumulating all of the sentences, which gives rise to the overall intention. As to any other errors that might be there, that might be a matter for somebody else. As long as they all overlap that is really the only thing. 124. Just the 166 notice, your Honour, it's a backup of an assault charge. The s 166 certificate assault being a backup charge is dismissed. 125. Mr Ford can be taken back down into custody. He can be taken back down into custody with a recommendation that he receive immediate medical assessment and treatment for his medical conditions in the prison hospital initially. ********** 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: 10 July 2018