Jenkins v R

The Indictment

1. The indictment to which the applicant entered pleas of guilty and on which he was sentenced contained nine counts, one each in respect of nine complainants. The indictment and the Form 1 documents in the sentence proceedings were as follows.
2. Count 1 charged an indecent assault of a child under 10, BL, aged seven years, between 1 January 2001 and 1 May 2001. That offence, contrary to s 61M(2) Crimes Act 1900 (NSW), had a maximum penalty of 10 years imprisonment. To be taken into account when the applicant was sentenced for the offence in count 1 were seven offences on a Form 1 document, in relation to the same complainant, alleged to have occurred between 1 January 2001 and 1 May 2001, being indecent assaults and acts of indecency.
3. Count 2 charged the applicant with indecently assaulting a child under 10 years, SR, aged eight, between 1 January 2003 and 28 February 2003, contrary to s 61M(2) Crimes Act, with a maximum penalty of 10 years imprisonment and a standard non-parole period of 5 years prescribed. There were two offences on a Form 1 document, relating to the same complainant, to be taken into account when the applicant was sentenced for the offence in count 2. They were committing an act of indecency and reckless wounding.
4. Count 3 charged the applicant with indecently assaulting a child under 10 years, BA, aged seven years, between 25 January 2003 and 31 December 2003, contrary to s 61M(2) Crimes Act, with a maximum penalty of 10 years imprisonment and a standard non-parole period of 5 years prescribed. There was no Form 1 document attached to count 3.
5. Count 4 charged the applicant with committing an act of indecency towards a child under 16 years, DB, aged 14 years, on or about 22 April 2008, contrary to s 61N(1) Crimes Act, with a maximum penalty of two years imprisonment. There was no Form 1.
6. Count 5 charged the applicant with indecently assaulting a child under 16 years, PE, aged 13 years, between 1 March 2007 and 1 May 2007, contrary to s 61M(1) Crimes Act, with a maximum penalty of 7 years imprisonment and a standard non-parole period of 5 years prescribed. There was no Form 1 in respect of count 5.
7. Count 6 charged the applicant with aggravated sexual intercourse with a child aged between 10 and 14 years, PA, aged 10 years and under the applicant's authority, between 1 September 2007 and 31 October 2007, contrary to s 66C(2) Crimes Act, with a maximum penalty of 20 years imprisonment. There was no standard non-parole period prescribed for that offence at that time. There were two offences on a Form 1 to be taken into account when the applicant was sentenced for the offence in count 6. They were two offences against the same complainant in the same time period, one of aggravated indecent assault and one of aggravated sexual intercourse.
8. Count 7 charged the applicant with aggravated sexual intercourse with a child aged between 14 and 16 years, JO, aged 15 years and under the applicant's authority, between 1 March 2012 and 31 December 2012, contrary to s 66C(4) Crimes Act with a maximum penalty of 12 years imprisonment and no standard non-parole period prescribed. There was one offence on a Form 1 to be taken into account when the applicant was sentenced for the offence in count 7. It was an offence of aggravated indecent assault of the same complainant, occurring between 1 October 2012 and 31 March 2013.
9. Count 8 charged the applicant with indecently assaulting JE, who was under the applicant's authority, between 1 December 2012 and 28 February 2013, contrary to s 61M(1) Crimes Act, with a maximum penalty of 7 years imprisonment and a standard non-parole period of 5 years prescribed. There was no Form 1 document in relation to count 8.
10. Count 9 charged the applicant with procuring a child under 14 years, NH, aged 11 years, for unlawful sexual activity with the applicant, between 1 May 2013 and 26 May 2013, contrary to s 66EB(2) Crimes Act, with a maximum penalty of 15 years imprisonment and no standard non-parole period. There was no Form 1 document in respect of count 9.

Some procedural history

1. On 9 October 2014 there were committal proceedings in the Local Court in which Mr Peluso cross-examined one complainant, SR, and the applicant was committed for trial to the District Court.
2. Ms Fernando said in her affidavit, unchallenged, that a trial was listed to commence on 15 June 2015, but did not proceed then, and a new trial date was fixed for 8 February 2016. On 26 October 2015 a hearing occurred in the District Court in which the then accused applied for separate trials in respect of some counts and opposed the Crown being permitted to rely on tendency reasoning. The court ordered that, other than one count being severed, the trial was to proceed in respect of all complainants and the Crown was permitted to rely on tendency reasoning.
3. By email dated 3 February 2016 the Crown Prosecutor advised Mr Peluso that the Crown would accept pleas of guilty to nine counts, in relation to an indictment then containing 20 counts, with some matters to be included on Form 1 documents.
4. Mr Peluso, Ms Fernando and Ms Long have set out details of conferences with, and instructions from, the applicant in their affidavits and annexures. I will come to the detail of them shortly.
5. The applicant was arraigned on nine counts and pleaded guilty in the District Court on 8 February 2016. A sentence hearing took place before Acting Judge Delaney on 20 May 2016. The material before the court in the sentence proceedings included a Pre-Sentence Report from Community Corrections Officer Phillipa Press, the contents of which will be referred to later, and a report of Jenny Howell, forensic psychologist, dated 16 May 2016. Ms Howell had interviewed the applicant in November and December 2015, and most recently on 9 May 2016. Some content of her report will be referred to in due course.

The applicant's evidence in support of his conviction appeal

1. In his two affidavits the applicant said that Mr Peluso advised him to plead guilty to the charges after learning he could not pay him any more money, and before Mr Peluso learned that the applicant did not have funds to continue to pay him, he had advised that he could win the case at trial. He said from the committal hearing until the last week before trial, Mr Peluso had advised him "we can win this case", but in the week before trial said they could not win the case. He said the statements from the witnesses in his case contained "all lies". He said Mr Peluso did not advise him about the availability of Legal Aid. He complained that Mr Peluso did not conduct investigations in preparation for the trial, including issuing subpoenas, and did not tell him about or read the report from Ms Howell to him before the sentence proceedings.
2. In cross-examination by the Crown in the appeal hearing the applicant agreed that his mother was paying his legal fees, had no difficulties doing so and did not stop paying, although he also said he did not have the money to go to trial.
3. He said he understood the court's decisions refusing separate trials and allowing tendency reasoning. He accepted he was advised by counsel that the Crown case was stronger as a result of those decisions by the court. He said he was only told in the week before the trial that his chances of winning were less.
4. He agreed that in the week before the trial he was given time by his legal representatives to go home and think about their advice that the Crown case was strong.
5. He was taken through the conference notes and written instructions annexed to his lawyers' affidavits. He maintained he did not commit any of the offences and his legal representatives made him plead guilty to "things he did not do". He agreed he told his legal representatives in conference he was lonely at the relevant times. He agreed his lawyers took him through the written instructions to which I will come, and he signed them. He agreed he told his lawyers he admitted his guilt and he did admit his guilt.
6. In respect of Ms Howell's report he said his lawyers told him to admit the offences to her and express regret and remorse. He said he did not recall being taken through Ms Howell's report by his lawyers or signing it to say that he agreed with a portion of her report in which she stated that the applicant did not deny the allegations, accepted his behaviour had been harmful to the victims and their families, and expressed regret, remorse and shame.
7. In respect of the Pre-Sentence Report which stated "Mr Jenkins did not dispute the police facts, repeatedly stating that 'I did it but I don't know why' and suggested he was 'lonely'", the applicant said he was probably confused when he spoke to the report author.
8. He maintained that when he conferred with his legal representatives after the sentence hearing, in August 2016, and signed further instructions, to which I will refer, that his counsel told him to plead guilty because they were not going to win the case.
9. He agreed that before he went into custody on the day he entered his pleas (on 8 February 2016) he was concerned about conditions in custody, including because of some medical issues, and concerned about his reputation and its effect on his family. He said that when he went into custody the conditions were worse than he had expected.
10. He said throughout his evidence on the appeal that he did not commit the offences and he was told to plead guilty.

Evidence adduced by the Crown in the appeal hearing

1. When cross-examined by the applicant in the appeal hearing Mr Peluso said he had no specific recollection of any conversation with the applicant about Legal Aid but he recalled at the committal proceedings the applicant received some documents about Legal Aid funding. He said he did not repeatedly tell the applicant they could win the case; he did express an opinion about the strength of the case in the week before the trial. He emphatically denied ever saying to the applicant that the trial would last 14 weeks and cost $200,000. He said at no stage did he tell the applicant to plead guilty or tell him he would not win the case and he did not tell the applicant what to say to Ms Howell, the psychologist.
2. From the affidavits of Mr Peluso, Ms Fernando and Ms Long, and the documents annexed thereto, the following can be discerned.
3. The solicitor, Ms Long, and both counsel were aware that the applicant's mother was funding his legal representation. At the conclusion of the committal hearing the applicant was provided with documents by the court, including in relation to Legal Aid. Ms Long brought that matter to the applicant's attention but he told her he did not need to apply for Legal Aid as his family were in a position to pay for his representation, and the applicant's mother confirmed that to Ms Long. Mr Peluso was never made aware of any issue about the applicant's inability to pay his legal fees while he was representing him. On 2 February 2016 Mr Peluso, Ms Fernando, and Ms Long conferred with the applicant. The applicant's mother attended a part of that conference. Ms Fernando said that she has never encouraged an accused person to plead guilty due to a lack of funds and would actively discourage such decision-making.
4. Mr Peluso said he advised the applicant on several occasions over the period he was representing him that the case against him was strong. He attached a file note by Ms Long dated 11 June 2015 (that is, before the first trial date) of a conference with the applicant which includes the note "Very, very strong case against you". The note also included "Counsel raised with client that it is a strong prosecution case and if he were to be guilty, the benefits of pleading guilty".
5. Ms Fernando said that after the decision in October 2015 ordering a trial in respect of all complainants and permitting tendency reasoning, she recalled the applicant being advised that the Crown case would be much more difficult to defend, given the same jury would hear evidence from all complainants and additional tendency witnesses, although there remained some prospect of success in relation to some complainants with significant credibility issues. She said that she was of the view that the applicant's prospects of success in defending the trial were limited and charge negotiation was worthwhile. She said she expressed this view to Mr Peluso and understood he was of the same view. She said the applicant maintained his denial of any offending and of the context of the alleged offending, such as sharing beds and showering with complainants.
6. The affidavits of Mr Peluso and Ms Long, and Ms Long's file note of a conference on 2 February 2016, Annexure B to her affidavit, indicate that the applicant, including in the presence of his mother, was advised about the strength of the case against him and at the end of the conference indicated he may plead guilty. He was advised to think about his position and come back the next day. Mr Peluso said at no stage was any pressure put on the applicant to change his pleas to guilty. Ms Long said the applicant was told to not make any "rash decisions" that day but to go home with his mother and return the following day to continue the conference.
7. At the conference on 3 February 2016, Mr Peluso, Ms Fernando, Ms Long, the applicant and his mother were present. The applicant was advised of the email of that date from the Crown Prosecutor indicating the Crown would accept pleas of guilty to 9 counts, one in respect of each complainant, with some matters on Form 1 documents. In his affidavit and attached conference notes Mr Peluso set out the instructions given by the applicant in respect of each complainant. I note there is a slight discrepancy between Mr Peluso's affidavit and those of Ms Fernando and Ms Long, in that Mr Peluso said that Ms Fernando attended the conference at his request after it had begun and the applicant had started giving different instructions than previously. However, Ms Fernando and Ms Long say that Ms Fernando was present throughout the conference and their conference notes seem to support that. The affidavits and notes reflect that the instructions given during that conference contained partial admissions. The affidavits and notes of Mr Peluso and Ms Fernando record that the applicant said the following:

• in respect of the complainant in count 1, he admitted being in the shower with him, but denied masturbating the complainant in the shower;
• in respect of the complainant in count 2 he said the complainant stayed in bed with him, they had cuddles before he went to bed, the applicant's penis was near the complainant's bottom, maybe [his] penis did fall out";
• in respect of the complainant in count 3: "Could have happened"… "Don't remember. Half the time I was asleep";
• in respect of the complainant in count 4: "maybe, but a bit hard to remember";
• in respect of the complainant in count 5: "pulled pants down - it is a possibility";
• in respect of the complainant in count 6 he admitted a cuddle but denied penile-anal penetration;
• in respect of the complainant in count 7 the applicant said "I admit I made my mistakes having them in bed and the shower. There might have been touching. I am not sure - if they rubbed up against me." The applicant said he did not want to face the complainant at trial, and he would say he did it (putting his finger in the complainant's anus);
• in respect of the complainant in count 8 the applicant said it did not happen but he would plead guilty. Ms Fernando's note was that the applicant said, "That definitely didn't happen but I will admit it and plead guilty… I might've been touching him but when I was asleep. I didn't have an erection"; and
• in respect of the complainant in count 9 he admitted they were in the same bed and he might have cuddled the complainant.

1. Mr Peluso, Ms Fernando and Ms Long's conference notes record that after discussing each of the complainants, the applicant said in respect of all charges, "they could have happened". Each of the legal representatives says that the applicant was then advised about a plea of guilty admitting his guilt or a "plea of convenience". Ms Long's conference notes record that Mr Peluso said to the applicant "We are not telling you what to say." The applicant is recorded as having said "I was lonely - I needed love."
2. Ms Fernando then prepared written instructions for the applicant to plead guilty. This is a three page document annexed to each of the affidavits of Mr Peluso, Ms Fernando and Ms Long. Each page is signed by the applicant, which he agreed during his evidence in the hearing of the appeal. Ms Fernando said that Ms Long read the written instructions document aloud to Mr Jenkins. He signed it and he signed the facts from the Crown Case Statement that were to form the basis of the agreed facts for sentence. Ms Long said that the applicant was not pressured in any way to enter a plea of guilty and was informed he still had the option of going to trial if he so wished. She rejected his allegation that he was told the trial would cost $200,000.
3. The "Instructions to plead guilty" document sets out that the applicant instructed his lawyers to enter pleas of guilty to the nine counts on the indictment. It states: "I deny committing these offences. Despite my denial to my lawyers in committing these offences, I wish to plead guilty, so as to receive a more lenient sentence, than if I was found guilty after trial."
4. It states "I understand that by pleading guilty to these charges, I am telling the Court, the police and everyone that I" committed each act particularised in the counts on the indictment. The document includes: "I understand that I have the right to plead 'Not guilty' to the offence and let a jury of 12 members of the community decide whether I am guilty or not. I understand the case against me and I have discussed all the evidence against me with my lawyers John Peluso, Michelle Fernando and Nadia Long. … I wish to plead guilty and have the Court sentence me accordingly. This has been my decision after carefully considering the matter. Nobody has pressured me or told me what to do. This is what I want to do."
5. Ms Fernando says she was present in court when the pleas of guilty were entered and she was told by Mr Peluso that the applicant had "resiled from the plea of convenience and had admitted the offending".
6. The Pre-Sentence Report tendered in the sentence proceedings contains, under the heading "Attitude to offending", "Mr Jenkins did not dispute the Police facts, repeatedly stating that 'I did it but I don't know why' and suggested he was 'lonely'."
7. The report of Ms Howell, the psychologist, contains the following paragraph: "Mr Jenkins has entered pleas of guilty to all 9 charges. His discussion of the offences was consistent with the agreed facts and he did not deny the allegations. He accepts that his behaviour has been harmful to both the victims and their families and [he] voiced appropriate regret and remorse for his offending behavior stating that his behaviour was wrong and he is ashamed of his actions. He is experiencing feelings of depression and anxiety in relation to the charges."

Applicable legal principles

1. In Layt v R [2020] NSWCCA 231, Payne JA, Walton and Fullerton JJ agreeing, summarised the principles in relation to conviction appeals following pleas of guilty: "[24] Where an applicant has entered a plea of guilty and subsequently seeks to appeal against conviction, it is not necessary to conduct an examination into the applicant's guilt or innocence. Rather, the relevant inquiry is into the integrity of the plea of guilty: Sabapathy v R [2008] NSWCCA 82 at [14]; Thafer v R [2019] NSWCCA 143 at [287]. [25] When a person enters a plea of guilty, that person admits to all of the elements of the offence (at least to the minimum level necessary for a conviction) and the conviction will not be set aside unless it can be shown that a miscarriage of justice has occurred: R v Chiron [1980] 1 NSWLR 218. [26] The rarity with which this Court grants leave to withdraw the plea of guilty at trial is an aspect of the public interest in the finality of proceedings: Reg. v O'Neill [1979] 2 NSWLR 582. [27] While the categories are not closed, some examples of where leave to withdraw a plea of guilty has been granted are: (1) the nature of the charge to which the plea has been entered is not appreciated: R v Ferrer-Esis (1991) 55 A Crim R 231 at 233; (2) the plea is not "a free and voluntary confession": R v Chiron at 220; (3) the "plea [is] not really attributable to a genuine consciousness of guilt": R v Murphy [1965] VR 187 at 191; (4) there has been a "mistake or other circumstances affecting the integrity of the plea as an admission of guilt": Sagiv v R (1986) 22 A Crim R 73 at 80; (5) the plea has been "induced by threats or other impropriety" and the appellant would not otherwise have pleaded guilty: R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep); and (6) the plea is not unequivocal or is made in circumstances suggesting it is not a true admission of guilt (Maxwell v The Queen (1996) 184 CLR 501 at 511; [1996] HCA 46). [28] It is for the person seeking to withdraw the plea of guilty to satisfy the Court that leave to withdraw the plea should be granted: R v Boag (1994) 73 A Crim R 35; R v Ferrer-Esis. It is only where the material before the Court discloses a real question about the guilt of an accused that the Court will grant leave to withdraw the plea: R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533."
2. In White v R (2022) 110 NSWLR 163; [2022] NSWCCA 241 the Court of Criminal Appeal confirmed that when an application is made to withdraw a plea of guilty after conviction and sentence, the conviction can only be set aside if it is established that a miscarriage of justice has occurred, in accordance with s 6(1) of the Criminal Appeal Act 1912 (NSW).

Consideration of appeal against convictions

1. The applicant challenges the integrity of his pleas of guilty, insisting they were not free and voluntary and not attributable to a genuine consciousness of his guilt of the offences on the indictment, but rather were induced by pressure from his legal representatives.
2. I did not accept the applicant's evidence of asserted improprieties by his lawyers in the process by which his pleas of guilty were entered. I accepted the evidence of Mr Peluso and the unchallenged evidence of Ms Fernando and Ms Long, supported by thorough documentary records from the relevant time.
3. From that evidence I am satisfied that the applicant's counsel and solicitor gave him appropriate legal advice and did not pressure him to plead guilty because of an inability to pay them for his trial (which I do not accept as a fact) or for any other reason, at any time. The evidence of the legal representatives and the documents indicate a thorough process undertaken with the applicant to explain the process and consequences of his pleading guilty and to explain the facts on which he agreed to be sentenced.
4. From the evidence and documents I conclude that shortly before his trial was due to commence and while preparing for his trial, the applicant made some partial admissions in conference with his lawyers and indicated he may plead guilty. He was given time to consider that position overnight. The next day he signed comprehensive written instructions prepared by Ms Fernando, but written in simple terms capable of being understood by the applicant, which firmly and clearly indicated his intention to plead guilty. Thereafter, it seems that the applicant more fully embraced a position of admitting his guilt of the offences charged, in conference with his lawyers, to the psychologist Ms Howell, to the author of the Pre-Sentence Report and in his evidence in the sentence hearing. He entered pleas of guilty in open court and there is no indication in the transcript of the proceedings of 8 February 2016 that there was any reservation about those pleas. I am satisfied the applicant's lawyers did not pressure or tell him what to say to the psychologist.
5. I infer that when the applicant went into custody after entering his pleas of guilty he found his time in custody difficult, including because of some health conditions, and his resolve wavered. He was given opportunities by his legal representatives in August and October 2016, as his sentence dates approached, to advise the court that he wished to withdraw his pleas of guilty. He declined those opportunities in writing.
6. His lawyers' careful documentary record satisfies me that there is no issue about the integrity of the applicant's pleas, that he was not improperly advised or pressured by his lawyers to plead guilty, that he freely and voluntarily made the decision to plead guilty, in part to obtain a more lenient sentence and in part because he admitted his guilt. On the material before the Court there is no real question about the integrity of the applicant's guilty pleas or his guilt of the offences charged. The applicant has not demonstrated that a miscarriage of justice has occurred in the entry of his pleas of guilty. I would grant him leave to appeal against his convictions, despite the delay, but dismiss the appeal.

The appeal against sentence

1. The applicant's grounds of appeal against his sentence were expressed as a combination of grounds of appeal and submissions. Distilled, the applicant seems to assert:

• that the sentence was manifestly excessive, including by comparison with other sentences for similar offending such as R v Van Ryn [2016] NSWCCA 1
• the sentencing judge made factual errors in his Remarks on Sentence
• the sentencing judge failed to give proper effect to the findings of special circumstances, by which it appears the applicant means that insufficient weight was given to his subjective circumstances, including his lack of prior criminal record, his good employment history, that it was his first time in custody, that he had suffered from dyslexia, and he had experienced bullying at school which had caused him anxiety, depression and loneliness and led to his leaving high school young
• the applicant disputed the facts and the contents of the Victim Impact Statements tendered in his sentence proceedings

1. The Crown's position, in summary, was that the sentence, while stern, was, not out of range for very serious offences committed against a large number of victims, and no lesser sentence was warranted at law.
2. I have read the recitation of the facts by Acting Judge Delaney in his Remarks on Sentence and the Agreed Facts Statement tendered in the sentence proceedings. While the Agreed Facts Statement more clearly specified the conduct which was the subject of counts on the indictment and offences on the Form 1 documents, I am not satisfied that his Honour made any factual errors. I appreciate that the applicant now disputes the facts which he agreed to at the time he entered his pleas of guilty and signed the agreed facts which were to be the basis of his sentence. However, having dismissed his appeal against his convictions, his appeal in respect of his sentence must be considered on the basis of the Agreed Facts which were put before the sentencing judge. I will summarise the facts of the offences on the indictment and on the Form 1 documents.

Facts of offences for sentence

1. The offence in count 1 on the indictment was an indecent assault of a child, BL. There were on a Form 1 five offences of indecently assaulting the same child and two offences of committing an act of indecency. The child BL lived with his single mother, his father having left the family when he was very young. The family were described as in the low socio-economic category and lived in Department of Housing premises. The applicant met BL's older brother through his role as a Cub Scout leader at Riverstone Scout group and as the owner-operator of a bus charter company. The applicant arranged to take BL and his older brother on his bus on a golfing trip. On the golfing trip, the applicant slept with BL in a single bed in a hotel room while BL's brother slept in the other bed. The applicant slept with the child, cuddled up against him, the applicant wearing pyjamas and the child wearing boxer shorts. This conduct was not the subject of any charge.
2. After the golfing trip BL began attending Riverstone Cub Scouts. The applicant would take BL and his brother to his home, where they would wash the applicant's buses and perform minor chores for pocket money. The applicant bought BL toys and took him to fast food restaurants and recreational activities. The applicant invited BL and his brother to stay at his home. He had BL sleep in his double bed while the other brother slept in the spare room. Again, the applicant cuddled and "spooned" BL while sleeping with him, the applicant wearing pyjamas and BL boxer shorts. None of that conduct is the subject of any charge.
3. At the time of the offences BL was aged seven. The first offence on the Form 1, an aggravated indecent assault, consisted of the applicant showering with BL, both of them naked, and touching the child's body, including his genitals. The second offence on the Form 1, an aggravated indecent assault, consisted of the applicant showering with BL when BL had stayed at his home, masturbating the child's penis and rubbing his buttocks for about 15 to 20 minutes. The third offence on the Form 1, of aggravated indecent assault, occurred when the applicant and BL were sleeping in the applicant's bed. The applicant pulled down the child's boxer shorts to his thighs, pulled down his own pants and pressed his groin against the child's bottom, skin to skin.
4. The offence in count 1 on the indictment of aggravated indecent assault consisted of the applicant masturbating the child's penis in the shower. The aggravated act of indecency on the Form 1 consisted of the applicant putting the child's hands on his penis and using the child's hands to masturbate his own penis while he masturbated the child's penis. A further aggravated indecent assault and aggravated act of indecency on the Form 1 consisted of the applicant masturbating the child's penis, and masturbating his own penis in view of the child. The last offence on the Form 1 of aggravated indecent assault occurred when the applicant sat in a bath with the child between his legs, the child's back against the applicant's crotch, and the applicant masturbated the child's penis and testicles and rubbed his hands over the child's thighs and buttocks while the child could feel the applicant's erect penis against his back.
5. The sentencing judge assessed the offences against BL as "well above the midrange of objective seriousness". The maximum penalty for the offence in count 1 was 10 years imprisonment. His Honour afforded the applicant a 10% discount for his plea of guilty. Taking into account the matters on the Form 1, the indicative sentence was 7 years imprisonment.
6. The offence in count 2 was an indecent assault of SR, aged eight. There were two offences on a Form 1, being committing an act of indecency and a reckless wounding. The facts were that the applicant was introduced to the child's mother through a mother of a child at Riverstone Scouts. SR's father had left the family when SR was very young. SR was living in Department of Housing premises and his family was of low socio-economic status. On 13 October 2002 the applicant took SR to a Pizza Hut to celebrate his eighth birthday, with BL, BL's older brother and SR's mother. Thereafter, the applicant invited SR to his house and SR agreed. On a night in December when SR was permitted to stay overnight at the applicant's home the applicant slept with SR on the lounge, cuddled up behind the child with his groin pressed against the child's bottom. This conduct was not the subject of any charge.
7. The facts of the aggravated act of indecency on the Form 1 in relation to SR were that the following morning the applicant told SR to have a shower with him. The applicant entered the shower, naked, with the naked child and offered to wash the child, who refused. The applicant stood in the shower and stared at the child's naked body while the child washed himself. The child was eight years old. After this occasion the child regularly stayed overnight at the applicant's home, three to four nights a week, and the applicant slept in a bed with the child, cuddled behind the child's body. The applicant wore pyjamas and the child slept in boxer shorts. On some occasions, the applicant slept with both BL and SR in the bed with him. The conduct in the aggravated indecent assault in count 2 consisted of the applicant pulling his pyjama pants down when the child was asleep and rubbing his penis against the child's buttocks, which woke the child, who was eight years old at the time that occurred in 2003.
8. The offence of reckless wounding of SR on the Form 1 occurred in August 2009. SR was at the applicant's home with a friend. SR and his friend were playing Xbox in the lounge room. At bedtime SR went to sleep in the applicant's bed with him. A few hours later SR got out of bed and went back to the lounge room where his friend was still playing Xbox. The applicant came into the lounge room and asked SR to come back to bed, which SR refused. The applicant threw a rusty metal pole, about 40cm in length, at the floor in front of SR. The pole bounced off the floor and the tip struck SR above the right eyebrow, causing a deep laceration. The applicant drove SR to hospital where he received six sutures to the wound.
9. The sentencing judge assessed the objective seriousness of the offence in count 2 as above the mid-range of objective seriousness. The maximum penalty was 10 years imprisonment with a standard non-parole period prescribed of 5 years. The sentencing judge allowed a 10% discount for the plea of guilty. Taking into account the two matters on the Form 1 he indicated a sentence of 6 years 3 months imprisonment.
10. The offence in count 3 was an indecent assault of BA, aged seven. The applicant met BA through BL and his brother. On one occasion the applicant took BA to Riverstone Scouts but BA did not continue attending Scouts. On one occasion in 2003, the applicant drove BL and his brother and BA to a children's play centre where they spent the day. On the car trip home the applicant allowed BA to sit on his lap and steer the car. Later that evening BL and his brother invited BA to stay the night. The applicant told BA to sleep in his bed. The applicant got into bed with the child and began to thrust and grind his body behind the child. The child could feel what he believed to be the applicant's erect penis pushing against his bottom. That is the conduct the subject of the offence in count 3. The child became scared and got out of bed. He went to sleep in a bedroom with BL and his brother. BA was seven years old at the time of the offence. The next day BA told his mother what had happened and he was not permitted to attend the applicant's home again.
11. The sentencing judge assessed the offence the offence against BA as less serious than the offences in counts 1 and 2. The maximum penalty was 10 years imprisonment with a standard non-parole period of 5 years prescribed. With the discount of 10% for the plea of guilty, his Honour indicated a sentence of 6 years imprisonment.
12. The offence in count 4 was committing an act of indecency towards DB, aged 14 years, in April 2008. In April 2008, DB was 14 years of age and a ward of the State. On 20 April 2008 he absconded from his care facility and met with his brother, who was a friend of SR. On 22 April 2008 DB and his brother went to the applicant's residence to visit SR. The applicant sat next to DB on the lounge and put his arm over him to cuddle him, said he would look after him and kissed him on the top of his head. At bedtime the applicant prepared a makeshift mattress in the lounge room floor for DB and his brother to sleep on. SR slept in the applicant's bed. After DB and his brother had fallen asleep the applicant stood at the end of the mattress, over DB's head, pulled his boxer shorts down to his thighs and masturbated his erect penis in the direction of DB, who woke and saw the applicant masturbating his penis over him. DB panicked and wanted to leave but his brother wanted to stay. DB took the applicant's car keys and drove the applicant's car to his youth refuge and informed his carer of what the applicant had done. The applicant later informed police that DB had stolen his car and DB was charged with unlawful use of the car. DB was 14 years old at the time.
13. The sentencing judge assessed that offence as slightly below the mid-range of objective seriousness. The maximum penalty was 2 years imprisonment, and with a 10% discount for the plea of guilty the indicative sentence was 10 months imprisonment.
14. The offence in count 5 was an indecent assault of PE, aged 13 years, in 2007. PE and his brother PA, the victim in count 6, lived with their mother in circumstances described as "of low socioeconomic background". Their father had left the family when they were both very young. They both had limited skills in reading and writing and PA suffered from a mild cognitive impairment. In early 2007 the boys' mother was introduced to the applicant and the applicant would take the mother and boys on outings for dinner, lunch and movies. He then made arrangements with their mother for the boys to stay the weekend at his home. On that weekend he took the boys out on his charter bus. The brothers stayed the weekend at the applicant's home where they each slept in a spare bedroom. Thereafter, the brothers began regularly staying at the applicant's home. Over time he brought them video games, clothes and toys and took them to bowling, minigolf and ice skating. He continued to take them on outings on his charter bus. In April 2007 PE was staying with the applicant, as was SR. One night they got into the applicant's bed to watch a movie. PE fell asleep during the movie. He was wearing full-length pyjamas with underwear underneath.
15. The facts of the aggravated indecent assault against PE are that in the early morning the applicant pulled the bed sheets from PE, who was still sleeping, and pulled his pants and underwear down. PE woke to find his pants and underwear pulled down just above to just above his knee and the applicant standing next to the bed over him. The applicant said he thought it was the only way to wake PE up. PE pulled up his pants and walked out of the room. He was 13 years old at this time. His Honour assessed that offence as slightly below the mid-range of objective seriousness. The maximum penalty was 7 years imprisonment with a standard non-parole period of 5 years prescribed. With the 10% discount for the plea of guilty the sentence indicated was 3 years imprisonment with a non-parole period of 18 months.
16. The offence in count 6 was aggravated sexual intercourse with PA, aged 10 and under the applicant's authority. There were two offences against the same child on a Form 1, one being an aggravated indecent assault, the second, aggravated sexual intercourse with a child between 10 and 14 years. These offences occurred in September 2007 when the two brothers were staying at the applicant's home during school holidays. On the first night the applicant slept with the brothers, with one on either side of him. The first offence on the Form 1 occurred when, after PA had fallen asleep, the applicant put his hand into PA's boxer shorts and masturbated his penis, causing him to wake up. PA asked the applicant to stop but he continued to masturbate the boy's penis for about five minutes. PA began kicking at the applicant to stop him masturbating his penis. PA was 10 years old at the time of this offence.
17. The offence in count 6 happened about two nights later when PA was again asleep in bed with the applicant. The applicant pulled down PA's boxer shorts and pushed his penis into PA's anus, causing him immediate pain. The child cried and the applicant pulled his penis out of the child's anus. The child phoned his mother and told her he wanted to come home, but she did not have fuel for her vehicle to collect him. PA was 10 years old at the time of this incident. The second offence on the Form 1 happened the next night. The child went to sleep in the lounge room. The applicant again pushed his penis inside the child's anus. The child began to cry and ran to another room where his older brother was. When the boys returned home to their mother the next day, PA made partial disclosures of the offences to his mother, who then stopped the applicant from having further contact with the brothers.
18. The sentencing judge assessed the offence in count 6 as above the mid-range of objective seriousness. The maximum penalty for that offence was 20 years imprisonment. Taking into account the two matters on the Form 1 and with the 10% discount for the plea of guilty, the sentence indicated was 10 years and 8 months imprisonment.
19. The offence in count 7 was sexual intercourse with JO, aged 15 years and under the applicant's authority. There was an offence on a Form 1 in relation to JO, being an aggravated indecent assault. JO and his brother JE, the victim in count 8, met the applicant in around 2003 when their father was employed by the applicant's bus charter company. They went to the applicant's home on several occasions with their father. Both boys had limited reading and writing abilities, and JO suffered from a mild cognitive impairment. The boy's father separated from their mother and the applicant befriended their mother and considered her his girlfriend. In 2011 she became terminally ill with cancer and the applicant began minding the boys on weekends and school holidays. He generally stayed at Mount Ku-ring-gai Motel and Tomago Village Van Park with the boys. The applicant bought the boys toys and took them to activities such as bowling and arcade game centres. He bought them fast food. The offence on the Form 1 in respect of JO was that when the applicant was staying at the Mount Kuring-gai Motel with the brothers, on several occasions after JO had gone to bed and gone to sleep the applicant pulled JO's pyjama pants down and masturbated his penis until JO woke up and asked the applicant to stop, but the applicant continued. JO was 15 years old.
20. The offence in count 7 in respect of JO occurred in 2012 school holidays when JO was staying at the Mount Kuring-gai Motel with the applicant, in a room with a queen size bed and a single bed. JO was sleeping on the single bed and the applicant in the queen bed. During the night the applicant got into the single bed with JO, put his hands down the back of JO's pyjama pants and rubbed his bottom. JO woke up and the applicant pressed a finger inside his anus, causing him to feel immediate pain. JO asked the applicant to stop but the applicant told him to go back to sleep and continued to press his finger into JO's anus for a short time, then stopped. JO was 15 years old at the time of this offence.
21. The sentencing judge assessed that offence as above the mid-range of objective seriousness. The maximum penalty was 12 years imprisonment. Taking into account the Form 1 and with the 10% discount for the plea of guilty the sentence indicated was 7 years and 3 months imprisonment.
22. The offence in count 8 was an indecent assault of JE, who was under the applicant's authority. JE was the brother of JO. The offence occurred in the summer between December 2012 and February 2013, when the brothers stayed overnight with the applicant at his home. JO slept in a single bed in a spare room. JE said he wanted to sleep on the floor of the spare room but the applicant told him he was going to sleep with him. JE refused and lay on the floor in the spare room. The applicant grabbed JE by his arms and pulled him into his room and told him to get into the queen bed. JE refused and lay down on a lounge in the room. The applicant stood over JE and rubbed JE's penis, on the outside of his clothing, for a short time, then rolled him over and rubbed his bottom, on the outside of his clothing for a short time. The boy was scared, pushed the applicant's hands away, and went to sleep in the spare room with his brother.
23. The sentencing judge assessed that offence as slightly below the mid-range of objective seriousness. The maximum penalty was 7 years imprisonment with a 5 year standard non-parole period prescribed. With the 10% discount for the plea of guilty the sentence indicated was 3 years imprisonment with a non-parole period of 18 months.
24. The offence in count 9 was intentionally procuring NH, a child under 14, aged 11 years, for unlawful sexual activity with the applicant, in May 2013 at Mount Kuring-gai. NH lived with his mother in what was described as "low socio-economic background". His father left the family when he was very young. The applicant met NH in April 2013 through JE. The applicant befriended NH's mother and began taking NH away on weekends. They stayed at the Mount Kuring-gai Motel and the Ettalong Beach Resort. While staying at the motels the applicant purchased NH fast food for meals and took him to bowling and putt putt golf. He bought NH a remote-control car, some headphones and was shopping around to buy him a mobile phone. Each night at the motels the applicant told NH to sleep in a double bed with him even though there was a single bed for the child to sleep in in the motel room. The applicant cuddled and "spooned" NH during the night. On one Saturday afternoon, the applicant told NH to get into the double bed with him for a cuddle. NH continually told the applicant he wanted to sleep in the single bed but was made to sleep with the applicant in the double bed. On one occasion when NH was in the shower the applicant opened the door and looked at him in the shower. Each time the child stayed with the applicant, the applicant told the child he loved him. The sentencing judge assessed that offence as above the mid-range of objective seriousness. The maximum penalty was 15 years imprisonment. With the 10% discount for the plea of guilty the sentence indicated was 7 years and 3 months imprisonment.
25. In terms of subjective factors the sentencing judge took into account that the applicant was 56 years old, had no recorded criminal convictions, was brought up in Sydney with his family's support, worked for his father for about 27 years after leaving school at age 15, and in about 1997 began a bus-coach business. The judge noted that when the applicant's father died in 2006 the applicant found he could not maintain his business without his father's support, and he discontinued the business in 2011, and thereafter worked as a bus driver for another company until his arrest. His Honour observed that the applicant had never married and had lived away from home for only a short time and when he lived alone, he felt very lonely. He noted the applicant suffered from rheumatoid arthritis, for which he had received treatment in the past.
26. His Honour referred to evidence about the applicant's current medical conditions, which appeared to be arthritis and osteoporosis, for which his Honour accepted the applicant would need management and treatment in prison.
27. His Honour noted that the applicant had been in custody since 8 February 2016, and evidence had been tendered about the conditions of his protective custody, which gave him access to services and a yard. His Honour referred to the report of Ms Howell, the psychologist. His Honour noted that Ms Howell did not consider that the applicant was engaging in minimisation or denial, and his Honour said that he did not consider the applicant had done so while giving evidence in the proceedings. The judge accepted that the applicant had expressed shame and remorse for the harm his behaviour had caused the victims and their families, and his own family.
28. His Honour accepted Ms Howell's assessment of the applicant as in the low to moderate category to reoffend. His Honour accepted the applicant was remorseful and contrite and was prepared to enter into relevant rehabilitation activities as suggested by Ms Howell. His Honour was satisfied that the applicant's prospects of reoffending would be very low. His Honour referred to the Victim Impact Statements by DB, NH, JE, JO and BL, who had referred to the breach of their trust, betrayal, and the harm done to them. His Honour noted the contents of the Pre-Sentence Report in which the applicant had told the author that he did not dispute the facts, he "did it but [he didn't] know why" and he was lonely.
29. His Honour referred to the need for general and specific deterrence, stating: "General deterrence requires an understanding that all children are entitled to grow up and live their young lives in safety and without being subjected, either by force or coercion, to actively engage in such events as are described here. Where there is a coercive abuse of authority or family connection or inducement by the use of items, such as presents, outings or the like, these are matters which are to be deplored and denounced in the course of the sentencing process."
30. His Honour noted he had been referred to the decision of R v Van Ryn. His Honour noted a submission by Mr Peluso of counsel that the sentence should not be a crushing sentence. In response, his Honour said "they are so serious and involve such a lengthy period of offending against young boys over some nine or more [offences] that there cannot be a sentence which does not reflect the community disapproval of such matters." His Honour noted that offending against individual victims required a significant degree of accumulation.
31. His Honour noted that Mr Peluso had submitted there should be a finding of special circumstances and the Crown had opposed such a finding. His Honour found special circumstances in the fact of the applicant's first time in custody and the need for him, on release, to be given a significant amount of help to reintegrate with society.
32. The aggregate sentence imposed by his Honour of 21 years imprisonment with a non-parole period of 14 years 6 months imprisonment appeared to reflect his Honour's finding of special circumstances, as the ratio of the non-parole period to the head sentence was reduced from the statutory ratio of three quarters.

Consideration of grounds of appeal

1. The applicant has submitted that the sentencing judge did not give effect to his finding of special circumstances, but it appears that the applicant construed special circumstances as a reference to his subjective circumstances. It is clear his Honour did give effect to his finding of special circumstances as that term is properly understood.
2. I have already said that I am not satisfied his Honour made any errors in terms of the facts of the offences.
3. His Honour took into account the evidence given by the applicant in the sentence hearing, including that he had trouble coping at school because of some form of dyslexia. His Honour noted that the applicant "seemed lost as to being able to give a reason for what or why he had done these things and I accept that he was a lonely and isolated man", which his Honour found was not an excuse for his behaviour. The applicant complains that the sentencing judge did not take into account his bullying at school. I accept that his Honour did not expressly refer to the applicant being bullied at school, of which the applicant gave evidence in the sentence proceedings. Ms Howell had also referred to the applicant being bullied at school in her report. However I see no error in the way the sentencing judge dealt with the applicant's subjective circumstances overall.
4. The applicant asserted that the sentencing judge had become "very mixed up" in respect of the Form 1 offences concerning BL. I can see no error in the way his Honour dealt with the facts in relation to those Form 1 offences or in the way his Honour took the Form 1 offences into account.
5. That leaves the applicant's complaint that the sentence was manifestly excessive.
6. As his Honour noted, the applicant committed offences against nine boys, aged between seven and 15 years, over a period of about 13 years. He took advantage of children of single mothers of low socio-economic background, some with cognitive impairments, appearing to befriend them then betraying their trust, causing harm of the kind described by the victims in the Victim Impact Statements and otherwise well recognised by the community.
7. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J provided an overview of the principles relevant to an appeal asserting manifest excess (at [443]): "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. * Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. * Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. * It is not to the point that this Court might have exercised the sentencing discretion differently. * There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. * It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
8. I have considered Van Ryn. Sentencing is not an exercise in mathematical equivalence. I do note, however, that Mr Van Ryn had received a 25% discount for his pleas of guilty, whereas the applicant had received a 10% discount for his pleas of guilty entered later in the proceedings. So the starting point for Mr Van Ryn's sentence was higher than the applicant's. Mr Van Ryn committed 17 offences, against 9 victims, over 11 years, his conduct broadly comparable.
9. Applying the principles above to all the circumstances of the applicant's offending and his personal circumstances, the applicant has not established that the aggregate sentence imposed on him was manifestly excessive.
10. I would grant him leave to appeal against his sentence, and dismiss the appeal.

Orders

1. I propose the following: 1. Leave to appeal against conviction granted 2. Appeal dismissed 3. Leave to appeal against sentence granted 4. Appeal dismissed.

---

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: 22 November 2023