Mackie v The Queen [2022] VSCA 28

1 The applicant pleaded guilty in the County Court at Melbourne on 18 October 2021 to three charges of indecent assault upon a male person. He was sentenced on

Indecent assault upon a male person (contrary to s 68(3A) of the Crimes Act 1958,[1] as amended by the Crimes (Amendment) Act 1967)

Indecent assault upon a male person (contrary to s 68(3A) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967)

Indecent assault upon a male person (contrary to s 68(3A) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967)

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991

30 months' imprisonment, with a non-parole period of 20 months

Subject to reporting obligations for life, pursuant to s 34 of the Sex Offenders Registration Act 2004

2 On this application for leave to appeal against sentence the applicant advanced three proposed grounds of appeal. They are:

GROUND 1:

The Learned Sentencing Judge erred in his approach to the issue of delay that arose in the Applicant's case.

GROUND 2:

The Learned Sentencing Judge erred in his approach to the Applicant's very advanced age.

GROUND 3:

The total effective sentence and non-parole period [are] manifestly excessive.

3 On the appeal the respondent correctly conceded ground 1 was made out. It is thus appropriate to grant leave to appeal, to allow the appeal and to resentence the applicant.

4 Before considering the applicant's submissions we shall set out a factual summary of his offending and the judge's reasons for sentence.

5 The applicant was born on 13 April 1939. At the time of his sentence he was 82 years old. He will turn 83 in April of this year.

6 In 1977 the applicant was employed at a suburban technical college as a woodwork teacher. He also held the rank of captain in the local Army Cadet Corps. He was 38 years old at the time of the commission of charges 1 and 2, and 39 at the time of the commission of charge 3. Charges 2 and 3 are rolled-up charges.

7 In early 1977 Carl Keller was 15 years old. He wished to apply for a carpentry apprenticeship at the end of his Year 11. Although a student at another school, Carl enrolled in a woodwork class being run by the applicant to further this aspiration. This was an evening class commencing at about 6:30 pm. Keller was also a member of the Army Reserve cadets.

8 The applicant advised Carl at the start of a class that he needed to measure him up for a new cadet uniform and would do so after class. Carl advised the applicant that he needed to call his parents to alert them that he would be home late.

9 At around 8:30 pm when the class finished, the applicant took Carl to a nearby storeroom, which was used as a cadet storeroom. Carl entered the room followed by the applicant, who locked the door behind him. The applicant asked Carl to remove his clothing and Carl complied down to his underpants. The applicant stated, 'Your underpants are still on.' Carl replied with words to the effect that he would rather keep them on. Carl stood up on a stool and the applicant commenced taking measurements of his leg. He measured the inside leg with a tape measure and then pressed against Carl's genitals but outside his underpants. He did this more than once and was breathing heavily. The applicant pulled the front of the underpants open and said, 'We can't afford to get these hot.' He put his hands into Carl's underpants and touched his penis and testicles. A short time later he removed his hand from Carl's genitals and positioned himself behind Carl. The applicant told Carl not to turn around. Carl heard a noise but could not see what the applicant was doing.

10 Carl went home, spoke about the incident with his father and became distressed. His father confronted the applicant and returned Carl's cadet uniform. Carl more fully disclosed the incident to his wife in 2014.

Charge 2 (rolled-up charge): Josh Olsen**[3]**

11 Josh Olsen joined the Army Reserve cadet program in 1976. In 1977, when Josh was 14 years old, after a cadet activity the applicant offered him a lift to his family home. Despite Josh's protestations that he would walk home, the applicant insisted. Josh entered the vehicle and sat on the front bench seat. The applicant sat in the driver's seat. Another unknown male entered the car after Josh and also sat on the wide front bench seat. This meant that Josh was positioned in the middle and next to the applicant. As they travelled towards Josh's home the applicant put his hand on Josh's groin. He squeezed Josh's penis and made a comment. He kept his hand on Josh's groin for about 15 seconds. Josh did not inform anyone of this.

12 In early 1978 the applicant contacted Josh and advised him he had to come to the applicant's school to do the timetable for cadet activities. Upon Josh's arrival the applicant advised him that as Josh had recently been promoted to sergeant he would need to be measured up for a new uniform. The applicant and the boy walked to the armoury. The applicant locked the door after they entered. He told Josh to strip down to his underwear. He measured Josh's waist and inner leg. He brushed Josh's groin while measuring the inner leg. He then pulled Josh's underpants out at the front and looked at Josh's genitals. He commented, 'no pubic hair', and that Josh was very young. The applicant reached into Josh's underpants and fondled Josh's genitals. He asked Josh if he could achieve erection. Josh remained shocked and frozen while the applicant fondled his genitals for five minutes. The applicant then said, 'Nothing is happening here. You can get dressed and leave.' Josh went home and told his mother. She contacted the principal of the applicant's school, but the complaint was dismissed by the principal.

13 In 1976 Nelson Gray joined the Army Reserve cadet program. In May 1977 he attended a corporal's course, however, for irrelevant reasons he failed to attain that rank. Over the subsequent months, the applicant counselled him about personal issues and offered him a temporary promotion to corporal by working in the quartermaster store, situated at or adjacent to the applicant's office on the school grounds. Nelson commenced working there on Tuesday nights. He was then

14 years of age. The applicant commenced to show him pornographic magazines and asked Nelson about his physical reaction to the pornography.

14 In mid-1977 the applicant discussed masturbation with Nelson. He asked Nelson to remove his pants and he masturbated Nelson. On numerous further occasions over the course of about 18 months the applicant masturbated Nelson. At some point in 1977 the applicant introduced the suggestion that Nelson should masturbate him (the applicant). On occasions the applicant would show Nelson pornography, including once a pornographic film. These incidents occurred on Tuesday nights during the school term from about the middle of 1977 until the middle of 1978.

15 At the end of 1978 Nelson told his father that the applicant had made 'overtures' to him but did not disclose the actual sexual activities. His father 'approached the school' but it seems no further action was taken. Nelson avoided contact after that.

16 The judge noted that the offending occurred when the applicant was aged 38 (charges 1 and 2) and 39 (charge 3), and that he was aged 82 in November 2021. The judge observed that the applicant was a woodwork teacher at a school, with night time classes, and that he was captain of the Army Reserve cadets, which program was conducted at that school. The judge then set out the circumstances of the three charges, noting that charge 2 was a rolled-up charge consisting of two incidents of offending, and that charge 3 was also a rolled-up charge consisting of approximately 50 instances of offending.

17 The judge noted that s 27 of the Sentencing Act 1991 ('Sentencing Act') was 'still applicable' to this sentencing exercise and was available to be 'invoked ... provided the sentence does not exceed three years, and the requirements of ss 27(1A) and 27(1B) are satisfied'.[5] Relevantly, those sections read:[6]

27 Suspended sentence of imprisonment

(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or a part of the sentence if it is satisfied that it is desirable to do so in the circumstances.

(1A) In considering whether it is desirable in the circumstances to make an order suspending a sentence of imprisonment, a court must have regard to -

(a) the need, considering the nature of the offence, its impact on any victim of the offence or any injury, loss or damage resulting directly from the offence, to ensure that the sentence -

(i) adequately manifests the denunciation by the court of the type of conduct in which the offender engaged; and

(ii) adequately deters the offender or other persons from committing offences of the same or a similar character; and

(iii) reflects the gravity of the offence; and

(b) any previous suspended sentence of imprisonment imposed on the offender and whether the offender contravened the order suspending that sentence; and

(c) without limiting paragraph (b), whether the offence was committed during the operational period of a suspended sentence of imprisonment; and

(d) the degree of risk of the offender committing another offence punishable by imprisonment during the operational period of the sentence, if it were to be suspended.

(1B) Nothing in subsection (1A) limits or affects Part 2.

18 His Honour noted that, although no prior convictions were alleged against the applicant, two subsequent court appearances in 1985 and 1994 had resulted in five findings of guilt for charges of indecent assault upon a male person. On both occasions it appears he was released on a bond to be of good behaviour. Information about this offending was provided to the Court 'to assist in regard to the total circumstances relevant to a sentence, and options'.[7]

19 The circumstances of offending were then reviewed. It is unnecessary to repeat them.

20 The judge assessed the objective culpability or seriousness of charges 1 and 2 as 'mid-range' and of charge 3 as 'high', and noted the grave breaches of trust present in all charges, the marked age differential and the applicant's predatory behaviour in creating opportunities to assault these children.

21 The judge then turned to the issue of delay. We shall examine this more closely when considering ground 1. It is sufficient to say at this stage that the judge seemed to accept delay to be a mitigating factor, but qualified its beneficial impact on the sentence substantially.

22 His Honour observed that the applicant had not offended for a very long time, at least since 1994, and had made a substantial contribution to various community organisations including ANARE[8] and (his Honour noted with some concern) the 'scouting movement'.[9] The judge adverted to former students' testimonials.

23 On the issue of the applicant's age, the judge cited authority to the effect that age and ill health, while mitigating factors, must be weighed against the seriousness of the offences, their long-term psychological impact on each of the victims, the offender's gross breach of trust in engaging in sexual acts with boys in his care, and the principles of general and specific deterrence.

24 A psychiatric report from Dr Leonid Handsjuk was tendered on the plea. His Honour accepted that the applicant has suffered from an autism spectrum disorder, probably all his life, a consequence of which is 'anxiety in regard to interpersonal relationships' and which has been treated with medication for over 30 years and, when he was younger, with strenuous exercise.[10] The judge concluded that Verdins factors 5 and 6 were engaged,[11] but did not consider that the applicant's age and ill health were so exceptional that a gaol sentence ought not be passed.

25 The judge acknowledged the applicant's plea of guilty and stated that a 'discount' must always follow from such a plea, which was made at a relatively early date. The judge stated that the timing of the plea during the pandemic meant that greater weight 'by way of mitigation' ought lead to a 'more pronounced amelioration of ... sentence'.[12]

26 The judge noted that the applicant had no prior convictions before this suite of offending and that his counsel had contended that a wholly suspended sentence would be appropriate in all the circumstances.

27 It was also noted that the prosecutor submitted on behalf of the Director of Public Prosecutions (the 'Director') that 'one of the sentencing options that is acknowledged as being open by the Director was a wholly suspended sentence'.[13] The judge stated that general deterrence and denunciation remained important principles of sentence in this case and that specific deterrence was 'not such an important factor'.[14]

28 The judge was provided with cases[15] that were 'factually quite different' and impliedly of little assistance as yardsticks towards individualised justice.

29 This ground contends that the judge's treatment of the lengthy delay in this case was somewhat idiosyncratic and contrary to principle. We shall set out the delay periods for each of the offences charged:

30 It is readily apparent that the delay from offending to interview was lengthy in regard to charges 1 and 3 and from offending to sentence in regard to all three charges. It is also apparent that the delay from interview to sentence in charge 1 was nearly seven years and from interview to sentence in charge 3 was

31 The applicant had made clear on the plea that he relied heavily on the issue of delay, including the delay between interview and charge.

32 In dealing with delay, as part of his sentencing reasons, the judge said,

Given the time since these offences occurred, there are a number of matters to be considered. The first, is the issue of delay. Sentencing practice at the time, when there has been a delay of this magnitude being some 44 years, is very difficult to ascertain. This matter was referred to in R v AMP [2010] VSCA 48, [34], where it was stated that it must be accepted that the range of sentences imposed for these charges were generally lower than the present range of sentences for similar offences. However, I am able to say, from my experience going back, to that time, that certainly the type of abuse committed by

Mr Mackie in regard to Charge 3, given its persistence, would have led to

Mr Mackie receiving a gaol sentence at the time of that offending.

The delay in completion of legal proceedings is a mitigating factor, and must, at all times, be taken as a matter of law to be a factor to be balanced in any sentence; however, as said by Vincent [JA] in DPP v Toomey [2006] VSCA 90:

Ordinarily, when an adult offender is to be sentenced for offences involving the sexual abuse of a young child, the principles of general deterrence and denunciation remain at the forefront of a sentencing process.

In the same year as that statement, a determination was made in R v Kovac [2006] VSCA 229. The delay in that case was 27 years. At paragraph 28 Her Honour, Neave [JA,] said:

It has been recognised that delay that is common in sentencing sexual offenders does not give an automatic right for a reduction or discount in sentence. It seems to me that this must be because delay in such cases cuts both ways. Although it may seem harsh to punish an offender for offences committed many years ago, the long delay has also affected the three victims of these offences, who have had to wait for many years for the offender's wrongdoing to be recognised and punished. It is common for child victims of sexual offences to have difficulty in telling others about the offences which have been committed against them. Often offenders tell victims to keep the offences secret.

I should add, there is no evidence before me that that occurred in this case. [Her Honour Neave JA continued:]

While delay is, therefore, a mitigating factor, it should not be given undue weight.

[The applicant's plea counsel], in this regard, submitted that the delay here was exceptional; however, as expressed by the Royal Commission and as remarked by Neave [JA], such is often a feature of this offending, with shame playing a huge part in victims not disclosing such offending. True it was that ... Mr Mackie was arrested for the Keller incident in 2014, but apparently that did not proceed any further. There was, apparently, a pretext call conducted; however, Mr Mackie denied any wrongdoing, in the strongest terms, and confirmed that in a record of interview recorded at the time.

Further, when the matters of Gray were apparently put to Mr Mackie in 2018, he not only denied that, but described such as 'a lurid and false allegation'. It was, as I have said, difficult to understand where and what was the motivation for the indictment finally being filed; however, it seems clear that it is the role of the Royal Commission and, as I understand the position, the Royal Commission reference out to the police, which led to this indictment finally being laid in regard to each of these three charges on the 11th day of October 2021.

[The applicant's plea counsel] submits that his client has since 2014 had the sword of Damocles hanging over him. In my opinion, clearly that is not so. He not only vigorously denied any offending at the time of [the] original pretext call and the early record of interview, but he no doubt had the opportunity to clear up these matters when he came before the Court in both 1985 and 1994, and pleaded guilty to similar offences.[16]

33 In our opinion the trial judge erred in the manner in which he dealt with the delay between the interviews and the charges. The applicant was entitled to a sentencing benefit arising from being left in a state of uncertain suspense from at least 2014 (in relation to charge 1) and 2018 (in relation to charge 3). This is known as the 'unfairness limb' of the effects of delay on sentence. In R v Schwabegger,[17] Vincent AJA said as follows:

For my part, were it not for the presence of one single feature that I consider dramatically affects the position, I would have regarded the effective sentence imposed upon the applicant as clearly within the range of those available to the sentencing judge. That feature is the extraordinary and substantially unexplained length of time between that elapsed between detection and investigation of the applicant's offences and the date on which charges were eventually laid ...

Delay which is not attributable to the offender, of course, constitutes a 'powerful mitigatory factor'...[18] It can have relevance at a number of levels. In Duncan v R ...[19] the Court of Criminal Appeal of Western Australia stated at ... 749:

... where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.

... The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.

Further, there is, in my opinion, a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained. Additionally, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion. Street CJ adverted to these considerations when he stated in R v Todd ...[20]

Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.[21]

34 With respect to the sentencing judge, the proposition that the effects of delay on an offender's levels of stress and/or anxiety are eliminated or devalued as a mitigating factor by that offender's failure to confess to undisclosed offences during the period of delay is not a concept known to the criminal law.

35 In oral argument, senior counsel for the respondent conceded that specific error had been demonstrated by the applicant.

36 The sentencing discretion is reopened as a consequence of this error.

37 In deference to the judge's otherwise exemplary reasons we will deal briefly with ground 2. In our view his Honour gave appropriate consideration to the applicant's advanced age and consequent frailty. In quoting from R v Kovac,[22] the judge made it plain that the applicant's age and frail health were factors that operated to mitigate sentence. In his reasons for sentence the judge noted that 'no doubt gaol will not be easy for an 82-year-old' and that he took into account and 'certainly weigh[ed] the impact upon a person of his age, of [gaol], and [accepted] the principles 5 and 6 of Verdins in regard to Mr Mackie'.[23] The fact that the judge qualified this statement by saying that neither the applicant's general health nor the anticipated impact of imprisonment on his health were so exceptional as to rule out a gaol sentence, simply does not mean that the judge ignored this aspect, or gave it insufficient weight. On the contrary, we consider his Honour's consideration of this aspect to be compassionate and conscientious.

38 As the sentencing discretion is reopened it is unnecessary to consider this ground, which alleges manifest excess.

39 This was not an easy sentencing exercise; there are powerful factors pulling in different directions. We consider that the objective gravity of the offending, particularly on charge 3, demands a term of immediate imprisonment. The applicant egregiously abused the trust placed in him by his employer school, the Army Reserve, the parents of the children he molested, and the children themselves. Whilst the judge was correct to point out in argument that there are far more objectively serious examples of sexual abuse of children, the fact remains that damage caused by this offending has endured through the decades and has diminished the lives of the victims and, less directly, their families. This conduct demands denunciation. Further, those minded to offend in this manner must understand that, regardless of the passage of time, they will be held accountable for their grievous misconduct.

40 However, other important features in the mix, including delay, age, ill health, the pleas of guilty, the minimal prospects of reoffending, and the increased burden of imprisonment arising from the applicant's anxiety and depression, operate in combination to mitigate what would otherwise be a substantial term of imprisonment.

41 In our view the applicant, at 82, is not a suitable subject for adult parole. The Adult Parole Board's activities are better directed at younger offenders who can derive tangible benefit from their supervision.

42 In light of the above matters, we will resentence the applicant as follows:

43 The base sentence will be the sentence imposed on charge 3. Two months of the sentence on charge 2 will be cumulative on the base sentence. One month of the sentence imposed on charge 1 will be cumulative on the sentences imposed on charges 3 and 2.

44 The total effective sentence will therefore be 18 months' imprisonment. We will suspend 12 months of that sentence for a period of 12 months.

45 We will declare there to be 119 days of pre-sentence detention. We declare pursuant to s 6AAA that but for the applicant's pleas of guilty we would have sentenced him to a total effective sentence of 2 years and 6 months with a minimum term before parole eligibility of 18 months.

[1] Repealed by Crimes (Sexual Offences) Act 1980 s 5. Section 68(3A) of the Crimes Act 1958 remains in force with respect to offences committed prior to 1 March 1981: Crimes (Sexual Offences) Act 1980 s 2.

[5] DPP v Mackie [2021] VCC 1785, [6] (Judge McInerney) ('Reasons').

[6] As at 27 July 2013. Later amended by Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 ('Amendment Act'), which introduced the staged abolition of suspended sentences by confining suspended sentences as a sentencing option to the Magistrates' Court for offences committed on or after 1 September 2013: s 6(6); and repealed pt 3 div 2 sub-div 3 of the Sentencing Act (including s 27) from 1 September 2014, effecting the abolition of suspended sentences from all courts for offences committed on or after

1 September 2014: s 11. Neither amendment to the Sentencing Act applies to offences committed before the commencement of s 6 or s 11 of the Amendment Act: see Sentencing Act ss 149C(3), 149D(5).

[8] The Australian National Antarctic Research Expeditions.

[11] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.

[15] DPP v Beasley (a pseudonym) [2021] VCC 310; DPP v Elmer [2021] VCC 146.

[17] [1998] 4 VR 649 ('Schwabegger').

[18] R v Liang (1995) 82 A Crim R 39, 45.

[19] (1983) 47 ALR 746.

[20] [1982] 2 NSWLR 517, 519-20.

[21] Schwabegger [1998] 4 VR 649, 659-60 (citations in original). See also at 655-6 (Kenny JA), and the additional authorities cited by her Honour.

[22] (2006) 166 A Crim R 358; [2006] VSCA 229.