DPP v Dickson

1. Malcolm Dickson stands to be sentenced for a historical offence of indecently assaulting a male contrary to s 81 of the Crimes Act 1900 (ACT) as it stood in 1980 when the offence was committed. As explained by Christensen AJ in a similar case, the offence is described as “historical” because it was committed a long time ago and is charged under a provision of the Crimes Act that has long since been repealed. I echo her Honour’s words in saying the offence is “not historical in any sense for the victim, who continues to feel the effects of the offending to this day”: DPP v Roberts [2025] ACTSC 53 at [1]- [2].

2. Nor does the name of the historical offence, “indecent assault upon a male”, adequately describe what the victim in the present case endured. The offender was first arraigned on an indictment alleging five counts of that offence. The charges arose out of the same single incident, which occurred in 1980, when the victim was 16 and the offender was 39. On what would have been the first day of a judge-alone trial, the offender pleaded guilty to a single, “rolled up” count of indecent assault on a male and that plea was accepted by the prosecution in full satisfaction of the indictment. The acts previously charged included the offender fondling the victim’s genitals, performing fellatio on him, requiring him to fellate the offender and digitally penetrating the victim’s anus. The rolled-up count comprehends all those acts in a single count of indecent assault.

3. Section 81 of the Crimes Act as it stood in 1980 provided: Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.

4. As already noted, the age of the victim in the present case was just 16. He was not old enough to give meaningful consent, and he did not in fact consent to the acts performed on him. The prosecutor accordingly submitted that the offence is one of significant seriousness and that the only appropriate sentence is full-time imprisonment. I agree. At the conclusion of the sentence hearing on 13 February 2026, I revoked the offender’s bail for that reason.

Circumstances of the offence

5. It is necessary to consider the nature and circumstances of the offence. The prosecution tendered an agreed statement of facts which may be summarised as follows. In July th 1980, two months after his 16 birthday, the victim left home without his father’s permission, staying first with friends and then in a youth refuge. He went home briefly in August after being asked to leave the youth refuge but left home again shortly afterwards, telling his father he would not return. He told his friend Vince, who was around 15 years old, that he had nowhere to stay. Vince said he knew someone he could stay with and told him about the offender, who was a lay teacher at Marist College, where Vince was a student. The victim did not know the offender. Vince wrote the offender a note introducing the victim and telling the offender he needed a place to stay. The victim went to the offender’s place a few days later and gave him the note. The offender invited the victim into his home, where another man was present. After reading the note, the offender laughed and said to the other man, “have a look what Vince sent me”. The offender and the other man discussed driving to Queanbeyan and calling the victim’s father from there so he would think the victim was interstate.

6. During the evening, the two men and the victim consumed alcohol. The offender kept pouring the victim glasses of wine. The victim drank to the point of feeling intoxicated. After the other man left, the offender said to the victim words to the effect, “I want you to go and have a shower, but I want you to get undressed here”. The victim complied.

7. While he was in the bathroom, the victim considered escaping down a drainpipe. However, as he was naked, his clothes being in the living room with the offender, and as he had nowhere else to go, he discounted the idea.

8. When the victim returned from the shower naked, the offender had moved a mattress onto the lounge room floor. The victim got onto the mattress where the offender joined him, wearing only his underwear. The offender started to kiss the victim on the mouth and fondle his penis and testicles with his hand. The offender then performed fellatio on the victim for a few minutes and made the victim fellate him at the same time. After this, the offender opened a jar of Vaseline. The victim thought to himself “I am going to get raped here”. The offender then inserted one finger into the victim’s anus. At one point the victim began to shake and the offender asked, “what are you shaking for?”. The victim replied, “because I’ve never been in this situation before”. The offender said “well, I’m not going to hurt you”. The victim did not respond but thought to himself “you are hurting me”. The victim felt like the penetration lasted “for hours”. He fell asleep while the offender was still penetrating his anus. When he woke up the following morning, the offender was gone. The victim left. Objective seriousness of the offence

9. A central aspect of the sentencing task is to make an assessment of the objective seriousness of the offence. One purpose of making that assessment is to determine where the offence sits within the range of offending caught by the relevant offence provision. Section 81, as is apparent from its wording, criminalised any indecent assault on a male regardless of age or consent. In Lam v R [2024] NSWCCA 6, the New South Wales Court of Criminal Appeal held at [122] that the equivalent New South Wales offence provision is capable of being directed only at male homosexual conduct. However, it includes any such conduct regardless of age or consent. It follows that the commission of an offence against a person who is not an adult and who does not consent to the act necessarily represents a more serious instance of the offence than an act between consenting adults. That is a significant factor increasing the seriousness of the present offence.

10. The prosecutor identified additional factors which he submitted warrant a finding that this was a significantly serious example of this type of offending. First, he pointed to the “rolled-up” nature of the charge, which includes four separate instances of indecent assault upon a male (fondling the genitals, performing fellatio on the victim, requiring the victim to fellate him and digital penetration of the anus). The offence is clearly more serious on that account.

11. Secondly, the prosecutor submitted that the offence involved a breach of the trust the victim was entitled to place in the offender. That is a factor that increases the seriousness of the offence to some degree. The element of trust is limited because the offender was a stranger to the victim until the victim knocked on his door. However, as submitted by the prosecutor, it must have been obvious to the offender that the victim was a young person who was effectively homeless, at least that night. The note from Vince said he needed a place to stay. The victim knew the offender was a teacher. He was entitled to expect to be looked after by such a man rather than be raped.

12. Counsel for the offender accepted that there was a breach of trust on the limited basis of the adult-child relationship. Beyond that, he resisted the notion of any breach of trust, submitting that the offender did not know what circumstances brought the victim to his home. I accept that the offender may not have known the reasons for the victim’s need for a place to stay that night. However, in my assessment, a man in the vocation of a teacher, to whom a boy in need of a place to stay was sent by one of his students, can be said, having accepted the boy into his home, to have stood in a relationship of trust with that boy.

13. The offender further submitted that the offence did not involve “the usual cultivation of a relationship” often seen in cases of this kind. The offender had no personal relationship with the victim before or after the offending. Conversely, the offender acknowledged that the absence of any direct relationship between the victim and the offender meant that the offending was opportunistic. He submitted, in effect, that these factors cancel each other out. In deference to that submission, I have disregarded both factors, neither of which was raised by the prosecution.

14. The third matter relied upon by the prosecution as a factor increasing the seriousness of the offence was the victim’s vulnerability. There was a significant age disparity between the victim and the offender. The offender knew the victim was young and in need of accommodation. The victim’s vulnerability was increased by his intoxication, which was brought about by the offender giving him wine and repeatedly filling his glass. I accept that the victim was vulnerable and that the offender knew that. That is a factor that increases the seriousness of the offence.

15. Finally, the prosecutor submitted that the objective seriousness of the offence is increased by the duration of the offending. The only real measure of the duration of the offending is the time it must have taken for the various acts complained of to be committed. I accept without hesitation that, to the victim, the offending felt as though it continued for a long time. Otherwise, however, the state of the evidence does not permit me to make any reliable finding on that issue.

16. The most significant factors increasing the seriousness of the offence are the number and seriousness of the acts involved in the rolled-up charge, the victim’s youth and lack of consent and his vulnerability, which was known to the offender. In all the circumstances, I assess the offence to be one of considerable seriousness. The offender’s moral culpability for the offence is high.

Circumstances of the offender

17. There was limited evidence as to the circumstances of the offender. There is no suggestion that he had a difficult upbringing or suffers from any condition that would impair his judgment or his ability to make good decisions. As already noted, he worked as a teacher. He retired in 2000. He claims to have done various good things since then but there is no evidence to support those claims. He is now 85 years old. Before his bail was revoked, he was living alone in public housing in Sydney’s Eastern Suburbs. He has 13 children from different relationships. He has little contact with any of them apart from an adult daughter. He has a significant hearing impairment and suffers from diabetes. He has mobility issues and walks with a walking stick. He has a history of melanoma but did not report any concerns about the cancer returning. Counsel for the offender submitted that the offender would experience difficulty managing his ongoing health issues, which were supported by documents tendered at the proceedings on sentence, in prison. While health services are available in prison, I accept that they may not be to the standard of health care available in the Eastern suburbs of Sydney.

18. The prosecutor acknowledged that the offender is elderly and in poor health and that these are factors that could mitigate his sentence in some measure. However, as to the extent of any such mitigation, the prosecutor relied on the remarks of the Victorian Court of Appeal in Lee v The King [2024] VSCA 258 where the Court said at [36] (Priest, Taylor and T Forrest JJA): The authorities make clear that the advanced age and ill-health of an offender are relevant to the exercise of the sentencing discretion, but cannot be determinative of the length or severity of the sentence. Although the fact that an offender is likely to spend the whole or a very substantial portion of the remainder of his or her life in custody is a ‘weighty consideration’, sentencing considerations other than age and ill-health – including punishment, proportionality and general and specific deterrence – may influence the sentence to the extent that an offender may well be required [to] spend the whole of his or her remaining life in custody. Age and ill-health cannot justify the imposition of a disproportionately lenient sentence.

19. I respectfully adopt those remarks. At the age of 85, the offender is at some risk of spending his remaining life in custody. The significance of that consideration is to be weighed against considerable seriousness of the offence and the fact that, despite committing it, the offender was able to live the life of an innocent man for many years while the victim endured many years of feeling his prospect of a happy life had been taken from him.

20. Indeed, the offender’s freedom enabled him to commit a further offence, and to be dealt with for that offence as if it was a first offence. In March 2002, he was convicted of an offence committed in April 2001 of unlawfully and indecently dealing with a child under the age of 16 years. The child in question was indeed under the age of 12 years. The offending was similar to the present offence in that the child was invited into the home of the offender and sexually assaulted. Perhaps reflecting the better understanding the community now has of such offending, that child immediately complained to his mother, who immediately reported the matter to police. In light of the second offence, the offender cannot be dealt with as if the present offence was an isolated incident or an aberration.

Plea of guilty

21. Section 35(3) of the Crimes (Sentencing) Act permits the Court to impose a lesser sentence than it would otherwise have imposed if the offender had not pleaded guilty to the offence. An exception is where the Court considers that the prosecution’s case for the offence was overwhelmingly strong. That is not this case.

22. The prosecutor submitted that the timing of the plea, which came after the criminal case conference and the determination of a tendency application, was such that there should be a minimal discount to the offender’s sentence. He further submitted that, while the plea spared the victim from giving evidence, the lateness of the plea meant the victim was not spared the anxiety of travelling from Perth for the trial expecting to be called as a witness. Furthermore, as submitted by the prosecutor, beyond the plea of guilty there has been no indication that the offender has any remorse or insight into his offending. In a pre-sentence report provided to the Court, it is recorded that, despite pleading guilty, the offender maintains that he does not recall the offending or having known the victim.

23. The plea nonetheless has some utilitarian value, albeit limited for the reason submitted by the prosecutor. On behalf of the offender, it was submitted that the Court should have regard to the kind of offence and the significance of the plea in that context. Reference was made to the fact that giving evidence in matters of this kind is known to retraumatise the victim. I have reflected carefully on that submission. I have ultimately come to the view that, as submitted by the prosecutor, the Court should not differentiate between the kinds of offences before the Court in determining the appropriate discount for a plea. Having regard to the lateness of the plea, coming as it did on the first day of the trial, I consider it appropriate to allow a discount in the order of 5%.

Delay

24. The prosecution submitted that the significant delay between the time of offending and now should not be considered as a mitigating factor to the sentence. I respectfully agree. In this context, I would respectfully adopt the remarks of Lonergan J, with whom Basten JA and Hamill J agreed, in Sims v R [2019] NSWCCA 232 at [72], referring to another case as follows: Nor is it accurate to refer to a “lengthy delay” between the offence and sentence. There was a significant lapse of time during which the offender escaped identification and punishment. That of itself provides no necessary basis for a reduction in an otherwise appropriate sentence.

25. The prosecution cited the decision of the NSW Court of Criminal Appeal in Richards v R [2023] NSWCCA 107 and the remarks of Adamson JA at [94] which are to similar effect. The prosecutor submitted that, as it is known that the offender has committed a further offence since the offence now before the Court, it would not be appropriate to make a finding or place any reliance on the appearance that the offender has not engaged in further offending beyond the two instances of known offending. As already indicated, I accept that submission.

26. Furthermore, as noted by Christensen AJ in Roberts, the lapse of time between offending and the time the offender is brought to account does not derogate from the need to give due weight to the purpose of sentencing. Here Honour noted at paragraph [82] that: [G]eneral deterrence and denunciation are of paramount significance when sentencing for crimes involving the sexual abuse of children. The primacy of these principles does not diminish with time. Other considerations

27. Turning to other considerations, I have already noted that the offender has expressed no remorse. However, it must be accepted that his risk of reoffending is small simply because of his age and frailty. I also accept that he will find imprisonment challenging for the same reasons.

Current sentencing practice

28. I am required by s 33(1)(za) of the Crimes (Sentencing) Act to have regard to current sentencing practice in the Territory. The prosecution provided a table of comparable cases which I have considered. I have been particularly assisted by considering the decision of Elkaim J in R v March [2019] ACTSC 251, which has some similarities with this case except in that case the offending continued over several incidents.

29. I have also considered the decision of Christensen AJ in Roberts, to which I have already referred. The offender relied on that decision submitting that the offending in the present case is less serious, the suggestion being it warranted a shorter term of imprisonment. If that was the submission, I do not accept it. To the extent that there can be said to be a sentencing practice for this kind of offence, it is that sentences of imprisonment are imposed. The variation is in their length and the extent to which the sentences are suspended. However, as explained earlier in this judgment, ultimately the sentencing judge’s assessment of the objective seriousness of the offence is an important factor. My assessment of this offence by reference to the range of offences captured by s 81 of the Crimes Act in 1980 has led me to the view that this offence is perhaps more serious than was assessed by Christensen AJ in Roberts.

Effect on victim

30. The observations of Christensen AJ in Roberts as to the ongoing impact of these kinds of offences on victims find powerful support in the statement of the victim in the present case. In his victim impact statement, he spoke of his enduring feelings of worthlessness and self-hate caused by this offence. He said the offender robbed him of his youth, made him feel filthy and made it hard for him to trust people. He found two ways of easing his self-loathing: tattoos and alcohol. He said tattoos “were good because they hurt”. They were a way of showing the world he had pain, or so he thought. Alcohol numbed his pain and allowed him to have fewer feelings of worthlessness.

31. I wish to assure the victim that he is not worthless and has no reason to hate himself. He is not responsible for the offence committed against him. At a tender age, he was subjected to predatory conduct and that was not his fault. By reporting this matter and bringing the offender to account, he has shown himself to be a man of courage and resilience. I convey the same sentiments to the tendency witness who has been listening to these proceedings.

Orders

32. I consider the appropriate sentence to be a term of imprisonment for three years. That will be reduced to two years and ten months to reflect the offender’s plea of guilty.

33. Malcom Dickson, please stand: (1) For the offence of indecent assault on a male, you are convicted. For that offence, I sentence you to a term of imprisonment for two years and ten months commencing on 13 February 2026 and expiring on 12 December 2028. (2) I fix a non-parole period of one year and eight months commencing on 13 February 2026 and expiring on 12 October 2027.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum.

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