R v Cattell

THE PLEA OF GUILTY

1. The offender was committed for sentence on 2 November 2018 from the Penrith Local Court. The guilty plea and the timing of the plea are to be taken into account on sentence pursuant to s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act ('The Act'). The guilty plea was indicated and entered at an early stage in the Local Court. The plea was entered at the earliest reasonable opportunity and accordingly the full 25% discount is applicable. The indicative sentences that I will announce in these reasons for judgment will have been discounted by 25%. I also make the observation that the course adopted by the offender has spared the necessity for the victims to give evidence which would have been severely traumatic and hurtful.

VICTIM IMPACT STATEMENTS

1. S 25AA(3) of the Act requires the court to have regard to the trauma of sexual abuse on children. The victim MO provided a victim impact statement dated 1 June 2019, exhibit 4. The statement demonstrates that the victim has been profoundly affected by the actions of the offender which are ongoing. It has impacted upon relationships with his parents and siblings, his wife and children. He has become hyper-vigilant about the protection of his children. He has found it very difficult to make friendships.
2. The victim JM has provided a victim impact statement dated 25 July 2019. He says that the offender has ruined his life. It affects his life every day, he is in pain. He turned to drugs to try and block it out but it is still stuck in his head and he has trouble sleeping. He has been in and out of hospital because of his mental health issues. He says that the offender was a predator.
3. It is appropriate to record what was said by the President of the Royal Commission into Institutional Response to Child Sexual Abuse, at the opening hearing of the Royal Commission on 16 September 2013. In his opening address Justice McClellan said, "What many may consider to be low levels of abuse of boys and girls can have catastrophic consequences for them leading to a life which is seriously compromised from what might otherwise have been. Both boys and girls are left with a distrust of adults and difficulties with intimacy. Inappropriate touching of boys may leave them with confusion as to their sexual identity. This can result in life long difficulty in relationships which can cause problems in other aspects of their lives. Although the impact on the lives of abused persons has been reported within the academic literature I have no doubt that it is not well understood by the general community. In my role as a judge I have been called upon to review many of the sentences imposed upon people convicted of sexual abuse of children but I readily acknowledge that until I began my work with the Commission I did not adequately appreciate the devastating, and long-lasting effect, which such sexual abuse, however inflicted, can have on an individual's life."
4. I agree with the Commissioner.

THE OFFENDING

1. In assessing the objective seriousness of the offending I take into account the following factors in relation to each offence individually: 1. The form of conduct or intercourse (not to be regarded as the sole consideration); 2. the degree of violence; 3. the physical hurt afflicted; 4. any circumstances of humiliation; 5. the duration of the offence; 6. the age difference between the offender and the victim; 7. the inequality of the relationship (if any existed) between the offender and the victim.

THE AGREED FACTS AND OBJECTIVE SERIOUSNESS

1. There is a statement of agreed facts dated 1 November 2018 which is at tab 2 of exhibit 1.

VICTIM RC

1. When RC was 12 years of age in 1968 he lived with his mother, two sisters and two brothers at Lakemba. He was the oldest child in the family. His parents had separated when the victim was about five years old. The family lived in Punchbowl, they attended the St Therese Church at Lakemba each Sunday. The offender was the assistant priest at the Church. There was a seminary associated with the church nearby. The victim was an altar boy at the church, the offender was one of the two priests responsible for the training and development of the victim as an altar boy.
2. On a Sunday in the middle of 1968 the victim participated in a Mass with the offender. The offender asked the victim if he would like to visit the seminary the following week. The victim obtained permission from his mother to do so and the following week after Mass the victim accompanied the offender, intending to visit the seminary. The offender told the victim that he had to do several things in the presbytery prior to attending the seminary. The offender asked the victim to accompany him and said that he would drop him home later. The presbytery was a large house next door to the church where the offender resided. Upon entering the offender told the victim that they should shower together, the victim was uncomfortable with this but complied. The victim removed his clothing and entered the shower, the offender removed his own clothes while looking at the victim and talking to him about the victim's pubic hair. The offender put a towel on the floor and directed the victim to lay down on it. The offender suggested the pair massage each other. The offender obtained oil and while kneeling beside him massaged the victim's body. After some time the offender laid down and directed the victim to massage him. The offender directed the victim to massage his penis and took hold of the victim's hand and placed it onto the offender's penis causing the victim to masturbate him until ejaculation. This incident caused the victim to feel sick. The victim put his clothes back on, the offender said it was too late to go to the seminary and perhaps they would do it another day. The offender told the victim not to tell anybody about what happened.
3. When he arrived home the victim's mother observed that the victim's behaviour was different to normal, he told her what the offender had done. The victim's mother confronted the offender the next day, the family ceased attending St Therese Church. The victim provided a statement to police on 23 October 2017. The offender was issued with a court attendance notice on 7 December 2017.

OBJECTIVE SERIOUSNESS

1. The agreed facts demonstrate predatory behaviour on the part of the offender, predatory in the lead up to and commission of the offences. The victim was 12 years of age; the offender was 28. He used his position of priest to entice an altar boy to his home attached to the church upon a false promise to attend the seminary. The offending was not spontaneous, it involved some degree of pre-planning by reason of telling the false story.
2. The offender took the hand of the victim and placed it onto the offender's penis causing the victim to masturbate him to the point of ejaculation. The physical act of masturbating to ejaculation was of short duration. The conduct of the offender was not of short duration, they showered together, engaged in massaging each other post showering at the direction of the offender and then the offence occurred. The offender told the victim not to tell anyone. The offence is aggravated by the fact that the offender abused his position of trust in order to facilitate the offence. It was a serious example of offending.

VICTIM MO

1. When MO was about four years old in late 1973 or early 1974 he moved with his family from Melbourne to Castle Hill. The family attended the St Bernadette Church at Castle Hill and became acquainted with the offender who was the parish priest there. The offender frequently visited the family home. MO became close to the offender. When MO was about eight or nine years old he asked the offender to be his godparent after earlier having discussed this topic at school. The offender permitted MO to attend church social excursions organised for children older than him.
2. In 1979 the offender moved to St Matthews Catholic Church in Windsor, New South Wales. The offender allowed MO to stay with him during school holidays in the priests' accommodation in the presbytery at Windsor.

INDECENT ASSAULT

1. When MO was about ten years old in 1979 arrangements were made for him to stay overnight during the school holidays with the offender at St Matthews presbytery. At that time the house was also used by Father James Dooley, now deceased, who was also known to MO. Dooley slept in a separate room. In the night the offender instructed MO to sleep in the offender's bed with no clothes on. MO complied, undressed and got into the offender's double bed. The offender removed his clothes and got into bed with MO. The offender lay on his side and faced MO who was also lying on his side. The offender put his arms around MO and held MO close to him so that their bodies were pressed close together. MO's penis was pressed against the offender's body. The offender fondled MO's genitals and kissed him throughout the night. The offender told MO that he was special and that it was special to be with him this way. MO spent most of the night unable to sleep.
2. The following morning the offender showered with MO. The offender rubbed soap over MO's body including his buttocks and penis. The offender and MO washed each other's body. When the shower finished the offender dried MO's body with a towel.
3. Over the next five years until MO was 14 or 15 years old he continued to stay with the offender during school holidays on at least two occasions each year at Windsor and at St Marys after the offender moved to Our Lady of the Rosary in 1982. During each of these occasions the offender continued the same behaviour, sleeping with and fondling MO and showering with him.

OBJECTIVE SERIOUSNESS

1. The victim had ongoing contact and association with the offender. The offences were part of a continuous course of conduct that took place over a number of years, commencing when the victim was ten years of age. The offence was objectively serious, it involved skin to skin contact and genital fondling during the night when they were both laying naked in the same bed. The sexual contact continued the next day, including the offender rubbing the genital area of the offender while he was in the shower.
2. The offending involved planning by inviting the victim to stay overnight in the presbytery. The offending was prolonged. The offender's counsel concedes that this offence is the most objectively serious of the four offences that were committed on the victim MO. It involved a breach of trust which is an aggravating feature of the offence.

INDECENT ASSAULT

1. When MO was 11 or 12 years old during 1980 or 1981 the offender took MO on a camping trip to the Cox River, they were accompanied by a male adult friend of the offender and two boys a couple of years younger than MO. The offender and MO swam naked in a creek, the offender fondled MO's genitals while they were in the creek.
2. The offender regularly stayed at premises at Mollymook which he jointly owned with his brother. When MO was aged between 12 and 15 years between 1981 and 1984 the offender drove him to the premises at Mollymook on four or five occasions. They would usually stay there for two nights. Each night the offender would require MO to sleep naked in the same bed as the offender.

FORM 1: INDECENT ACT WITH MALE

1. On one occasion at the Mollymook house the offender lay on his back naked on a towel on the floor inside the residence. The offender requested that MO massage him. MO rubbed cream on the offender's shoulders, chest and stomach, the offender ejaculated on himself and MO.

FORM 1: INDECENT ASSAULT MALE

1. When MO was aged 13 or 14 years old in 1982 or 1983 the offender organised to take MO to visit the zoo at Dubbo. During this trip they stopped overnight in hotels or motels on three occasions. Each night the offender and MO slept naked together. At one location the offender fondled MO's genitals in bed and in the shower.
2. In 2004 MO attended a meeting at the parish office of St Bernadette's Catholic Church where he became aware that the offender had been charged with other offences against children. MO told his wife and his parents that he was abused by the offender and began counselling where he disclosed the offences to his counsellor. In 2008 MO made further disclosures to other family members. MO provided a statement to police on 22 November 2016. Court attendance notices were issued to the offender on 3 March 2017. On 14 May 2017 the offender was arrested at his residence in Queensland. He was extradited to New South Wales.

OBJECTIVE SERIOUSNESS

1. The victim was aged 11 or 12, the offender fondled the victim's genitals while swimming. Although there was some degree of pre-planning by taking the victim on the camping trip the offending was opportunistic and involved touching for a short period of time. The offending involved a breach of trust which is an aggravating feature of the offence. The offence is objectively less serious than the previous offence.
2. The Form 1 offences occurred at the offender's holiday home in Mollymook. The offender took the victim to his home with an expectation to indecently assault the victim. The offences occurred when the victim was aged between 12 and 15. The offences involved sexual touching, the offender masturbating his penis to ejaculation and fondling of the victim's genitals in bed and in the shower. The offender abused his position as a priest and the influence that he had over the victim to commit the offences.

VICTIM JM

1. In 1987 JM was seven years old, his older brother BM was in Year 3, they were enrolled as students at the primary school associated with Our Lady of the Rosary Church at St Marys. The Church was situated across the road from the school. The offender was the parish priest at the church. BM and JM lived with their mother near the church and school. BM died in 2002. The boys' mother was frequently physically violent towards them, on occasions they left their house and sought refuge from her at the church.

SEXUAL ASSAULT CATEGORY 4, INDECENT ASSAULT OF PERSON UNDER 16 YEARS UNDER AUTHORITY

1. During one evening when JM was aged six or seven years old between 1987 and 1988 he and BM sought refuge from their mother and stayed overnight at the church parish house where the offender resided. The boys were alone with the offender in the house, both boys were in beds in a spare bedroom. The offender entered the room and put his hand down the front of JM's pants and touched JM's penis. The offender masturbated himself until he ejaculated.
2. The offender said "I'm the father of this parish, keep this between us because no-one will believe you, don't tell anybody, it has to remain our secret." JM did not disclose the assault to anyone.

FORM 1: SEXUAL ASSAULT CATEGORY 4, INDECENT ASSAULT OF PERSON UNDER 16 YEARS UNDER AUTHORITY

1. A similar incident occurred a second time on another evening between 1987 and 1988 when both boys again sought refuge and stayed overnight at the residence. The offender entered the spare room where they were in bed and placed his hand on JM's penis and then masturbated himself until he ejaculated. The victim was vulnerable due to his domestic circumstances, a fact well known to the offender. The abuse of trust by the offender is an element of the offence and I do not take it into account as a separate aggravating factor.
2. The offending against JM commenced when he was aged six or seven years, the offender was then 47, the age differential was significant, the victim was at the lower end of the bracket of under 16 years. The offender masturbated his own penis to ejaculation, this occurred after the offender had touched the victims penis while he was in bed. The offending was of short duration, it was objectively serious offending. The Form 1 offence involves similar conduct occurring while the victim was the same age when staying at the offender's house.

SEXUAL ASSAULT CATEGORY 4, INDECENT ASSAULT OF PERSON UNDER 16 YEARS UNDER AUTHORITY

1. JM was nine years old and his brother BM was in Year 7 on 9 June 1999. They again sought overnight refuge at the offender's residence; JM and BM against slept in the spare room. The offender entered the room and pressed his penis against JM's anus, JM felt pain to his anus and called out "Stop, it's hurting". The offender pushed his finger against JM's anus, JM continued to call out "Stop". The offender stopped and moved away from JM, he remained in the room for a while. The following day the offender contacted the Department of Community Services and both boys were placed into the care of their grandmother. They never returned to the church and had no further contact with the offender. JM disclosed the assaults to Renee Lenahan in 2015, JM provided a statement to police on 25 August 2017. On Thursday 7 December 2017 the offender was issued with a court attendance notice.

OBJECTIVE SERIOUSNESS

1. The victim was nine years of age, the offender's counsel conceded that this is the most objectively serious of the offences involving JM. The offender pressed his penis against JM's anus, it involved pain to the point where the victim called "stop it's hurting". The offender did not stop, he then pushed his finger against JM's anus, the victim continued to call out "stop". Although the offending had a degree of persistence, it was of short duration. The abuse of trust by the offender is an element of the offence and I do not take it into account as a separate aggravating feature.

VICTIM PP: SEXUAL INTERCOURSE WITH PERSON TEN YEARS AND UNDER 16 YEARS

1. PP attended our Lady of the Rosary Primary School at St Marys. She became acquainted with the offender through his activity as parish priest at a Lady of the Rosary Church which was associated with the school, when she was in Year 4 in 1988. On two occasions she attended confession with the offender during the school lunch break. At the end of 1999 when PP was in Year 6 the offender organised for students from the school, including PP, to sing at the offender's 25th Jubilee Celebration. About 20 students formed the choir, it rehearsed in a community hall opposite the church. On one occasion the offender visited the hall to observe the rehearsal, while he was there PP used the toilet. When she exited the cubicle the offender was present in the washroom area, the offender hugged PP, he told her he had missed her. He lifted her dress, moved her underpants aside and put his finger in her vagina. He told her that she was special and God will do great things with her. He removed his finger from her vagina, hugged her and left the washroom.
2. PP completed primary school shortly afterwards. She had no more contact with the offender, although she saw him occasionally at church‑related events. In 2001 when PP was 22 years old she disclosed the matter to her mother. PP provided a statement to police on 25 February 2018. The offender was issued with a court attendance notice on 17 March 2018.

OBJECTIVE SERIOUSNESS

1. The victim was 11 years of age, the offender 50. The offending was predatory and opportunistic. It was of short duration. He took advantage of choir practice preparing for the celebration of 25 years since his ordination. It involved digital penetration. "Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration, (citation omitted), but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non‑consensual acts of sexual intercourse. Whilst the form of the forced sexual intercourse is an important factor it is not to be regarded as the sole consideration": R v Hibbard [2009] NSWCCA 20 Price J at [56].
2. The conduct of the offender by digital penetration was the most serious of all the conduct admitted on his part. I find in this case that digital penetration was objectively less serious than penis/vagina penetration.

VICTIM GO: AGGRAVATED INDECENT ASSAULT UNDER AUTHORITY

1. GO was 16 years old in October 1991 when GO school's friend KW died. KW had been a parishioner of the offender's church at St Marys. The offender offered his services as a priest to provide counselling to GO and other students. GO attended a face-to-face counselling service with the offender at high school for KW's funeral. Ward's funeral service was conducted by the offender on 22 October 1991. After the service the offender approached GO who was upset, the offender hugged GO and offered to take him to a church house located at Ulladulla in order to allow him to deal with his grief.
2. The following day the offender picked up GO from his home and they drove to the house owned by the offender at Mollymook.
3. When they arrived there was a vehicle in the driveway of the premises. The offender said that someone else must have booked the house and they would have to stay in a motel. The offender obtained accommodation in a motel in the Ulladulla area, the room contained two single beds. The offender told GO that he would be busy that afternoon, purchased fishing gear and left GO to fish off a wharf for some hours. The offender returned to the wharf in the late afternoon and collected GO. That evening they went to a restaurant where they shared a bottle of wine. While travelling back to the motel the offender asked GO what he liked to drink. GO told the offender that he drank Bourbon. The offender stopped at a bottle shop and purchased a bottle of bourbon and a bottle of Coke. When they returned to the motel the offender poured drinks of bourbon and Coke for each of them. The offender continued to pour drinks for GO. GO became intoxicated and fell asleep.
4. GO woke in the night, he was in bed under the covers. He was wearing the same clothing he had worn to the restaurant. The front button of his jeans was unbuttoned. The offender was lying in the bed behind him. The offender had one hand down the front of GO's pants and was touching GO's penis. The offender had pulled his own pants down and was pushing the front of his body against the back of GO. GO could feel the offender pushing something against his anus. GO rolled over and pushed at the offender. GO said "Fuck off" and the offender got out of bed immediately. GO saw that the offender's pants were down, the offender's penis was not erect. The offender got into his own bed and GO remained in his bed alone that night. The following morning the offender drove GO back to his house. This was the last time GO saw the accused.
5. In 2006 GO made a police report by telephone where he disclosed to an operator what had occurred. Again in 2014 he had a further report to Katoomba Police Station. In 2016 GO provided a statement to police at Windsor Police Station. About 7.30am on 14 May 2017 the accused was arrested by Queensland Police at his home address in Queensland, he was extradited to New South Wales.

OBJECTIVE SERIOUSNESS

1. The victim was 16 years old. The offender's breach of authority cannot be taken into account as a separate aggravating feature as it is an element of the offence. It is relevant in assessing the objective seriousness of the offending. The offender used the vulnerability of the victim who was grief stricken following the death of a school friend. It was a calculated and planned offence. The offender used alcohol to facilitate his offending. The assault involved touching of the genital area of the victim. The offence while involving skin to skin contact did not involve coercion or conduct over a long period of time. The Crown submits that the offending is not as objectively serious as other offences committed by the offender. The offending conduct was objectively serious. The principle that is to be applied to the offending before me is: "General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the Courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.": EG v R [2015] NSWCCA 21, Hoeben CJ at CL at [42].
2. In this case as a result of what I will say later about the rehabilitation of the offender the need for protection of the community does not have application in this case. The dominant sentencing considerations are general deterrence and denunciation.

SUBJECTIVE CIRCUMSTANCES/PROSPECTS OF REHABILITATION

1. Dr Webster, a psychologist, has provided a report to the Court dated 10 July 2019. It informs me that the offender is a 79 year old man. When he was 11 he was required to take on adult responsibilities in his household. He stated that he just had to accept his new life as it was a matter of family survival. He entered the seminary when he was 17 years of age. He completed his primary school education at St Thomas Catholic School at Lewisham. He won a full bursary in Grade 6 which paid for his secondary education at Christian Brothers High School Lewisham. He entered St Columbus Seminary Springwood, New South Wales in 1958 at the age of 17 years. After completing studies in philosophy over the following three years he graduated to St Patrick's Seminary Manly New South Wales at the age of 21 years. He studied theology for the next four years. Seminary training in this area was notoriously challenging due to its impersonal, regimented and isolated structure. The deleterious consequences of such formation experiences has been thoroughly examined in psychological literature. He was ordained as a Catholic priest at the age of 24. At the age of 50 in 1999 the offender was appointed as the Vicar General of the Parramatta Diocese of the Catholic Church. He resigned from his role as a Catholic priest following the first set of charges being laid. He was incarcerated after pleading guilty to the allegations from 25 November 1994 to 24 November 1996 aged 54 to 56 years, serving his first term of imprisonment for five counts of indecent assault on a male. The indecent assaults were perpetrated against one boy who was approximately 14 years old when the offender was ministering at the Liverpool Parish.
2. The offender was released on parole and he is understood to have abided by the conditions of his release. He earned income working with his brother in a business. An armed robbery occurred at the shop when both he and his brother were present - this offender was stabbed twice in the neck. He moved to Port Macquarie with his mother approximately a year later and his brother joined them. The offender's move out of Sydney initiated a return to volunteer work and he became heavily involved in the local bowling club in which he became vice president. This was brought to an abrupt end when the club management was advised of the offender's past offending. The offender and his brother subsequently moved to Queensland and the offender went on the aged pension. The offender was sentenced to his second term of imprisonment which took place from the age of 74 to 76 years. Sentencing was in response to two counts of indecent assault on a male and one count of indecent assault and under authority victim over the age of 14 years and less than 16 years and one count of act of indecency on a person under the age of 16 years. The offender entered a plea of guilty to those offences which took place in the late 1980's and related to sexual abuse of a single adolescent child over two years when the offender was in the ministry at St Marys Parish.
3. The offender was released to parole on 9 December 2016 and returned to Queensland to reside with his brother. When the offender was on parole from 2017 onwards until his next term of imprisonment there were no problems while he was on parole.
4. He was dealt with by Haesler SC DCJ on 9 December 2016 which meant that he served four months over and above the sentence imposed by English DCJ. He has been diagnosed with diabetes 2, he has irritable bowel syndrome which has occurred during the last 18 months. He is hearing impaired and always requires hearing aids. In 2015 his general practitioner diagnosed him with anxiety and he was further diagnosed with depression in 2017. He has been prescribed the anti-depressant Avanza.
5. It is the view of Dr Webster that the offender has a paedophilic disorder and that that has gone into complete remission many years ago. The offender first noticed his attraction to minors when he was in his 20s after ordination when he began to have contact with children. It is clear that his primary sexual attraction since ordination has been to post-pubertal male children. Attraction to children in this age group, approximately 11 to 14 years, is defined as hebephilia and is not to be confused with the commonly known and misunderstood term paedophilia which refers to prepubertal children.
6. Dr Webster says that the agreed facts are consistent with the offender's stated sexual desire, that is for non-penetrative sexual activity with post and sometimes peri-pubertal boys. There was one stark exception to this and that is the matter of PP. The offender claims that his sexual desire has ceased now that he is in old age. This is consistent with the fact that there have been no allegations suggesting that the offender has engaged in sexual activity with a child since he was first arrested at the age of 54 years, almost three decades ago.

ATTITUDE TO OFFENCES

1. Within the Catholic perspective he was aware that he was committing a most grievous sin. He reports the period of offending as "a battle within". He now recognises the sometimes catastrophic effects of sexual abuse of children, particularly when this occurs in the context of a fiduciary relationship. He states "I can't gauge how much hurt I have caused individuals but I assume that this is the case, otherwise I wouldn't be regretting it, I can't change it". The offender claims a high degree of empathy "Their pain is my pain, I don't spend time thinking about it as it's too distressing but I have done so, especially when first convicted".
2. While old age has undoubtedly assisted Mr Cattell in pursuing a child‑safe lifestyle Dr Webster believes his avoidance of fantasy and contact with children has made a significant contribution towards his reported reduction in the intensity of his attraction to children. The offender asserts that he had no desire to abuse children for many years.

RISK ASSESSMENT

1. The Static 99R test was applied to the offender. It is an actuarial method for identifying where and in what way an individual may fall within a particular level of risk. The offender has been assessed as risk level 2 category of risk, that is below average risk. Dr Webster goes on to say, "It is now almost 30 years since the last alleged offence took place. The offender is in the final years of life, he has grown considerably since the sexual offences were reported. Should he stay on track of avoiding contact with children as he has for the last three decades the likelihood of him reoffending is negligible."

CONTRITION/REMORSE

1. The offender has been undergoing regular sessions with a psychologist by the name of Terri Sheldon. She has seen the offender for 16 sessions since 22 March 2017. She says that the offender has repeatedly expressed extreme and consistent remorse and shame about his sexual behaviour towards the young people he offended against. He has often raised the matter of the harm he has done to them and their families and how his behaviour and its outcomes are the antithesis of what he wanted his life to mean for others. He has persistently indicated concern for their wellbeing and a wish to do whatever it takes to not cause them or any others affected by his behaviour any further pain.
2. There is a sentence assessment report before the Court dated 27 May 2019, under the heading "Attitudes" it says, "Mr Cattell discussed his shame at thoughts of his offending behaviour. He said he regrets his actions. He acknowledged the harm and emotional trauma his actions caused." Under the heading "Risk Assessment" it says, "Mr Cattell has been assessed at a T3 medium low risk of reoffending according to the level of service inventory."
3. I accept that the offender has shown genuine remorse and contrition in relation to his offending.

DELAY

1. Lengthy delay will often lead to considerations of fairness to the offender playing a dominant role in the determination of what should be done in the matter of sentence. At times this may require what might otherwise be a quite undue degree of leniency being extended to the offender. The offender has not reoffended since the last offence in 1991. The Court is entitled to consider that this constitutes a voluntary cessation of criminal activity.
2. In this matter specific deterrence is of little or no weight. There is strong evidence of remorse, contrition and rehabilitation. This is a case where there has been a substantial delay in prosecution and the offender is successfully rehabilitated and has refrained from reoffending. Due to the delay and the rehabilitation of the offender considerations of fairness to the offender play a dominant role in the sentence.
3. In 1994 he was dealt with for similar offending and was sentenced to a term of three years and six months with a non-parole period of two years. On 20 February 2015 English DCJ sentenced the offender to two years and six months with a non-parole period of one year and six months. She set a parole date of 18 August 2016. On 9 December 2016 Haesler SC, DCJ dealt with the offender for a number of offences including fondling of penis involving alcohol, hugging, rubbing, manipulating penises and ejaculation.
4. The sentences were made partly concurrent with the sentences imposed by English DCJ. His Honour took a fairly flexible approach to ensure that the offender was punished for the totality of his offending. He also structured the sentences to recognise delay and the impact of delay upon the offender. His Honour said at p 5 of the sentencing remarks, "It has enabled him to demonstrate he can lead a law abiding life in the community and this warrants a lesser sentence." His Honour referred to Magnuson [2013] NSWCCA 50 and Moon v R [2000] NSWCCA 534. His Honour also tried to balance the sentences imposed for the other matters. His Honour imposed an aggregate sentence of one year and six months. The offender was released immediately. The sentence meant that he served four months detention for the offences before his release.

TOTALITY

1. What do I mean by totality? The principle of totality in sentencing was described by Street CJ in R v Johnson; R v Holder (1983) 3 NSWLR 245 at [260] as follows: "The principle of totality is a convenient phrase. Descriptive of the significant practical consideration confronting a sentence judge when sentencing for two or more offences. Not infrequently a straight forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate in broad sense the overall criminality involved in all of the offences and having done so will determine what, if any, downward adjustment is necessary whether by telescoping or otherwise in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
2. It was submitted on behalf of the offender that had these offences been reported to police between the commission of the offences and the sentence proceedings in 2015 and 2016 the current sentencing matters could have formed part of an aggregate sentence. There is force in that submission.
3. The question I need to ask is, "what would likely have been the effect of a head sentence imposed if the offender had been sentenced at the one time for all of the offending?": Porter v R [2019] NSWCCA 117.
4. I take into account in answering that question that there are five victims here which would have required a degree of accumulation on each other as well as the other victims of previous offending. It would appear that that was the approach adopted by Haesler SC DCJ. Implicit in the question is the need to consider the principle of totality of criminality which requires a judge to ensure that the total aggregate sentence is derived through a process of accumulation or concurrency of individual sentences so it appropriately reflects (but does not exceed) the overall criminality in multiple offences.
5. The issue relates to the assessment of both the total term and the non-parole period.
6. I have taken into account past sentences imposed on the offender and the question what would the sentence have been if these matters were dealt with at that time. There must be some period of imprisonment over and above the terms previously imposed but in so doing I am cognisant of the principles of totality.

SPECIAL CIRCUMSTANCES

1. I find special circumstances by reason of the offender's age and his prospects of rehabilitation.

AGGREGATE SENTENCE

1. Pursuant to s 53A of the Act I impose an aggregate sentence. The indicative sentences have been reduced by 25%.

CHARGE 1 - INDECENT ASSAULT MALE RC: MAXIMUM PENALTY FIVE YEARS

1. The indicative sentence is six months. But for the 25% discount the sentence would have been eight months.

CHARGE 2 - INDECENT ASSAULT MALE MO: MAXIMUM PENALTY FIVE YEARS

1. The indicative sentence is six months. But for the 25% discount the sentence would have been eight months.

CHARGE 3 - INDECENT ASSAULT MALE MO: MAXIMUM PENALTY FIVE YEARS

1. The indicative sentence is four months. But for the 25% discount the sentence would have been five months and ten days.

CHARGE 4 - SEXUAL ASSAULT (INDECENT ASSAULT) JM: MAXIMUM PENALTY SIX YEARS

1. The indicative sentence is seven months. but for the 25% discount the sentence would have been nine months and ten days.

CHARGE 5 - SEXUAL ASSAULT (INDECENT ASSAULT) JM: MAXIMUM PENALTY SIX YEARS

1. The indicative sentence is eight months imprisonment. But for the 25% discount the sentence would have been ten months and 20 days.

COUNT 6 - SEXUAL INTERCOURSE (DIGITAL): MAXIMUM PENALTY EIGHT YEARS

1. The indicative sentence is 18 months but for the twenty-five per cent discount the sentence would have been two years.

CHARGE 7 - AGGRAVATED INDECENT ASSAULT UNDER AUTHORITY GO - Maximum Penalty 7 years

1. The indicative sentence is eight months. But for the 25% discount the sentence would have been 10 months and 20 days.
2. I impose an aggregate sentence of 30 months and I set a non-parole period of nine months. The commencement date of the sentence is 26 July 2019. The sentence will expire on 25 January 2022, the non-parole period expires at 25 April 2020 and the offender will be eligible for parole on that date.
3. I direct that the report of Dr Webster be placed on the file of the offender.

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: 17 September 2019