R v Crawford

District Court of NSW|2023-05-12

REMARKS on sentence

On 7 February 2023 the offender pleaded not guilty upon arraignment on an Indictment containing 16 counts and one alternative count (Count 2). On 9 March 2023 the jury returned verdicts of guilty in respect of Counts 1, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 16 and 17.
Count 1 is an offence pursuant to s61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years. Counts 3 and 17 are offences pursuant to s61KC(a) of the Crimes Act 1900 and carry a maximum penalty of 5 years imprisonment.
Counts 5 to 11, 14 and 16 are offences pursuant to s66DB(a) of the Crimes Act 1900 and carry a maximum penalty of 10 years imprisonment. Count 13 is an offence of attempt an offence pursuant to s66DB(a) of the Crimes Act 1900 and also carries a maximum penalty of 10 years imprisonment.
The offender was arrested on 18 February 2020 and on 25 March 2021. Since then he has been on bail subject to strict reporting, residency and non-association restrictions.

The sentence hearing

The sentence hearing took place on 12 May 2023. The following is my summary of facts which may be derived from the jury verdicts in respect of each count as follows:-

Count 1 - offence pursuant to s61M(2) of the Crimes Act 1900 - indecent assault on LL a child then under the age of 16 years, namely, 15 years.

The complainant LL was born on 25 January 2001 and had been a parishioner of the RC church since she was five. In 2016 she began playing music at the Saturday vigil mass and in the same year she took over from the choir master when she was then aged 15 years. LL and the offender had a relationship of friendship and affection. She saw him as a surrogate grandfather, and he served as an acolyte at the vigil mass. As an acolyte he was responsible for preparing the altar for the priest for the mass and LL had occasion to go into the sacristy to prepare the music for the mass. They would pass each other in the sacristy and on occasion the offender would ask her, "Where is my hug?". The victim would give him a hug on these occasions. On an occasion between 30 November 2016 and 24 January 2017 LL and the offender were both in the sacristy. When she turned to leave, he asked where his hug was. He then reached down and patted her on the buttock with his hand. It was only for a second and was very quick but made the victim feel uncomfortable.

Count 3 - offence pursuant to s61KC(a) of the Crimes Act 1900 - sexually touch another person without consent

A further incident took place towards the end of November 2020. After the vigil mass the victim LL, who was then 19, and the offender were in the sacristy with the victim's father and her sister. The father and sister had left the sacristy and as LL was leaving the offender tapped her on the right buttock saying, "Off you go". Again the tap was very quick, no more than a second. When asked how she felt after this incident LL said, "I didn't feel anything in particular, because I had gotten used to it. And I just assumed it was Peter behaving the way he always behaved".

Count 5 - offence pursuant to s66DB(a) of the Crimes Act 1900 - intentionally sexually touch child between 10 and 16 years.

The offender was an experienced netball coach and offered to provide IS, who was 11 years old, individual coaching. The coaching commenced at S Park Netball Courts at K. At the first training session the offender touched IS with his fingers above her clothing on her vagina for, "a second or two or three, or something like that". He used the index and middle finger of his right hand and it made her feel uncomfortable. After the training the offender told IS to go and get her mum so that they could arrange to have more training sessions.

Count 6 - offence pursuant to s66DB(a) of the Crimes Act 1900 - intentionally sexually touch child between 10 and 16 years.

At a training session where IS's sister, TS, attended the offender was coaching IS to do one of his defensive drills. He was standing a metre away from her facing towards her when he touched IS on the area of her vagina above her clothing with his fingers.

Count 7 - offence pursuant to s66DB(a) of the Crimes Act 1900 - intentionally sexually touch child between 10 and 16 years.

After this same training session the offender tapped IS on the bottom outside her clothing with his hand and said, "Bye". This was observed by TS.

Count 8 - offence pursuant to s66DB(a) of the Crimes Act 1900 - intentionally sexually touch child between 10 and 16 years.

One week later on a Thursday afternoon at S Park, K, IS was getting her water bottle when the offender touched her with two of his fingers on her vagina and above her clothing whilst she was drinking.

Count 9 - offence pursuant to s66DB(a) of the Crimes Act 1900 - intentionally sexually touch child between 10 and 16 years.

This offence occurred a few training sessions later on a Sunday at around 6pm at the C Park Netball Courts. Towards the end of the training session the offender took IS to the bottom of the hill on the football ground to do hill runs up the slope to the netball courts. Various trees and bushes obstructed the view from the netball courts where the mother of IS was located and the offender and IS. When he told IS to start he used his left hand to touch her vagina on the outside of her clothing with his middle and index fingers making her feel, "So scared".

Count 10 - offence pursuant to s66DB(a) of the Crimes Act 1900 - intentionally sexually touch child between 10 and 16 years.

At the same session on the netball courts at the end of the training session the offender touched IS on the vagina on the outside of her clothing with two fingers and said to her, "Good job".

Count 11 - offence pursuant to s66DB(a) of the Crimes Act 1900 - intentionally sexually touch child between 10 and 16 years.

On another Thursday afternoon at C Park Netball Courts, IS had been dropped off by her father who then went to get a coffee and then came back. During the training the accused touched IS with two fingers on her vagina on the outside of her clothes.

Count 13 - offence pursuant to s66DB(a) and s344A(1) of the Crimes Act 1900 - attempt to intentionally sexually touch child between 10 and 16 years.

On the occasion of the last training session IS had worn long pants to the training session and during that session she had crossed her legs and covered her private part with her hands. The offender told her to open her legs and move her hand, thus the attempt to intentionally sexually touch IS.

Count 14 - offence pursuant to s66DB(a) of the Crimes Act 1900 - intentionally sexually touch child between 10 and 16 years.

This offence occurred in September 2019 at a Netball Presentation held at K RSL. The victim JA was helping her mother set up trophies on a table when the offender came over and started talking to her about the netball season. At the end of the conversation he started tapping her on the stomach and did this for, "Maybe 5 seconds and it was just really slow". The patting made the complainant feel uncomfortable and she backed away from the accused and told him that she had to go and find her mum.

Count 16 - offence pursuant to s66DB(a) of the Crimes Act 1900 - intentionally sexually touch child between 10 and 16 years.

This offence involved the sister of JA, JMA who was 15 years old in July 2019 when she was asked by the offender if she was available to umpire for his netball team at a gala day. JMA arrived for the gala day and during the morning she spoke to him for about 20 minutes about the run down of the day and the times of the games. During that conversation he had touched her on the stomach 3 or 4 times with his fingers and also touched her on the face with his fingers, just a soft touch. At the end of the conversation JMA turned to walk away and she felt the offender's hand touch her bottom like a slap or a tap. She described it as a slight tap on the right side of her bottom.

Count 17 - offence pursuant to s61KC(a) of the Crimes Act 1900 - sexually touch another person without consent.

This offence concerned JMA and occurred one year later when she was 16 years old and attended the RWSC at T. During the morning she was sitting on a bench near the outdoor courts watching netball when the offender sat down on the bench next to her and they had a conversation about selection of the representative netball teams and the appointment of coaches to those teams. At the time the offender was president of the SG District Netball Association. During the conversation he poked JMA in the stomach two or three times and then JMA moved away from him because she was feeling uncomfortable. Her umpiring skirt was a bit short and because she felt uncomfortable she was going to adjust it when he slapped her on her bottom using the palm of his left hand on her right bottom cheek. At the end of the conversation JMA walked over to a bench that was approximately 10 metres away and told two adult witnesses that the accused had, "Slapped my bum". One of the women told JMA's mother and when JMA saw her mother later that day she reported the incident to her mother.
The Crown sentence summary became Exhibit A. It included a summary of the offending in each count and a NSW Police Force Report noting that the offender had no criminal convictions.
Exhibit A also included a Victim Impact Statement ("VIS") from LL which she read via AVL. I refer to the VIS below.
Exhibit B was a Sentencing Assessment Report ("SAR") under the hand of Ms G Loader dated 5 May 2023. Under the heading "Attitudes" the author noted that the offender denied each of the offences in totality. She noted, "He explained his belief that the victims had made false claims against him for multiple reasons".
The author further noted that one of the victims, which inferentially was JMA, the victim in Counts 16 and 17, was motivated to make false claims because she "became displeased with him" after she asked for information about her representative coach which he would not disclose.
Under the heading "Insight into impact of offending" the author noted the offender "demonstrated little insight into the offences and no empathy towards the victims for his offending behaviour. He claimed the offences are completely untrue."
The offender expressed a willingness and ability to undertake intervention and also to undertake community service work. He was assessed at a low risk of reoffending and using the Static-99R tool, a very low risk of sexual reoffending. He was also assessed as suitable to undertake community service work. Annexed to the SAR was a report from the NSWCC Psychologist Ms J Barton setting out her assessment of his risk of sexual recidivism, as having a very low risk compared to other male sex offenders.

The offender's evidence

The offender relied on the following written documents:- 1. Exhibit 1 comprised eight formal undertakings, each dated 10 May 2023 from the wife, family members and friends of the offender and which read:- "I accept the verdict of the jury. I am aware that Mr Crawford has been found guilty of sexual misconduct with children. In the event that the Court may consider supervision relevant in relation to sentencing orders I undertake and promise to faithfully comply with any supervision orders in relation to Mr Crawford and children for the duration of such orders." 1. Exhibit 2 comprised six testimonials from the offender's wife, daughter-in-law Celia, Ms S Mrmacovski, Ms T Saify, Ms E Phillips and Mr R Chipman, each of which attest to the good character of the accused, his contribution to the community through the church and the netball community by dint of his administrative skills and his devotion to his family. 2. Exhibit 3 was a report from Mr T Watson-Munro, psychologist, dated 8 May 2023. Mr Watson-Munro opined that the risk of recidivism of the offender is low. He noted that the offender expressed regret referable to the necessity for complainants to come to give evidence in support of the allegations. Mr Watson-Munro opined that the offender's life had been characterised by "a prodigious, consistent work ethic involving employment within the Commonwealth Public Service… in addition to him working as a lecturer at TAFE level". He noted his active involvement in the church as an acolyte for many years and his long standing involvement in netball over a period of 35 years. 1. Exhibit 4 was a character reference from Ms G Zacka, undated and unsigned, which was also a testament to the offender's character and stated her belief that the convictions are totally out of character for him. 2. Exhibit 5 was a reference from Father P A Smithers, who had known the offender since August 2014 through the RC Church at which the offender was an acolyte. Father Smithers described him as "a man of deep faith, reliable, trustworthy and honest". Further he had been responsible for the management of the renovation of the Parish Centre and was an advisor on financial matters at the Parish. He was further described as "generous and kind" and had never been perceived as exhibiting inappropriate behaviour towards any other person.

The Crown's submissions

The Crown relied on a detailed and thorough written outline of submissions in which it submitted that the only appropriate sentence was one of fulltime imprisonment. The Crown set out relevant sentencing principles in respect of child sexual assault offences which are not in issue. It is clear that deterrence is the primary sentencing principle so as to protect children from exploitation and to deter others from acting in a similar fashion.
The Crown submitted that the objective seriousness of the offences is to be determined by reference to all relevant facts and circumstances, including the nature of the sexual act involved. The age of the child by comparison to the age range specified in the offence-making provision is a relevant factor to the seriousness of the offence, relying on Gale v R [2021] NSWCCA 16 at [49]. Also relevant is that the conduct was not isolated and did not come to an end through voluntary cessation by the offender, relying on R v Gavel [2014] NSWCCA 56.
The Crown submitted that the objective seriousness for each offence should be assessed as follows:- 1. Count 1 - low end of the range. 2. Count 3 - low end of the range. 3. Count 5 - within mid-range, but at the low end. 4. Count 6 - within mid-range, but at the low end. 5. Count 7 - low end of the range. 6. Count 8 - within mid-range, but at the low end. 7. Count 9 - within mid-range, but at the low end. 8. Count 10 - within mid-range, but at the low end. 9. Count 11 - within mid-range, but at the low end. 10. Count 13 - within mid-range, but at the low end. 11. Count 14 - low end of the range. 12. Count 16 - low end of the range. 13. Count 17 - low end of the range.
The Crown noted the offences were largely opportunistic rather than planned, but were not devoid of forethought particularly in the case of Counts 5, 6, 7, 8, 9, 10, 11 and 13 where the victim IS was his focus during private netball training sessions.
The Crown submitted an aggravating factor pursuant to s21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSPA') was that the offender abused a position of trust or authority in relation to the victims.
The Crown submitted that the offender had demonstrated no remorse or empathy for the victims and lacked insight. The NSW CC psychologist had reported, "hostility to women is a likely risk factor. According to the IAF Mr Crawford made a sexist remark about the victims saying none of them were attractive as if to prove he wouldn't have offended against them. He does, however, report good relationships with his adult daughters and wife".
Given his lack of remorse and insight the Crown submitted that his prospects of rehabilitation are not good however the Crown accepted that he is a very low risk of reoffending.
The Crown further submitted that pursuant to s21A(5A) of the CSPA, the good character and his lack of previous convictions are not to be taken into account as a mitigating factor if the court is satisfied that his good character was of assistance in the commission of the offences. The Crown submitted that but for his good character, the offender would not have assumed the roles that gave him access to the victims and the opportunity to commit the offences. In any event, prior good character in the context of sexual offences against children carries little weight relying on R v Gent [2005] NSWCCA 370 at [51] and [52].
The Crown noted that the offender had complied with relatively strict bail conditions since 18 December 2020 and that he was now 73 years of age, however submitted that age is not a licence to commit offences.
The Crown further submitted that as there were four victims an appropriate degree of cumulation was required to recognise the harm done by each offence to each victim. In the case of IS, Counts 6 and 7 occurred in one training session as did Counts 9 and 10. Otherwise the offences were distinct and whilst opportunistic, not isolated.
In her oral submissions, the Crown rehearsed her submission that a custodial sentence was the only appropriate sentence here and that an Intensive Correction Order was not available. With respect to the offender's submission concerning breach of trust and the offender being in a position of authority concerning the offences where IS was the victim, the Crown conceded that on each occasion a parent was present however that fact did not preclude the court finding that there was a breach of trust. Rather the presence of the parent did not change the nature of their relationship but instead highlights the position of trust and authority the offender was in as her private coach. This enabled him to effectively offend whilst in plain sight where a parent was not far away.
The Crown conceded that the Local Court statistics for the relevant offences were available but of limited utility. The court would take into account the period of time over which the offending occurred, the nature of the sexual touching and the fact that it was a course of ongoing conduct.
The Crown accepted the very low likelihood of this offender reoffending however submitted that a finding that he had good prospects of rehabilitation was not open based on his plea of not guilty, his lack of remorse and insight together with the attitudes noted concerning his lack of empathy towards the victims.

The offender's submissions

Counsel for the offender also relied on a detailed written outline of submissions. In respect of Counts 1 and 3 concerning the victim LL he submitted the offending fell at the lowest end of the range of objective seriousness. In respect of the victim IS the offender submitted that the offending in Counts 5, 6, 8, 9, 10 and 11 fell towards the lower end of objective seriousness for those offences, and the offending in Count 7 and 13 fell at the lowest end. In respect of the victim JA, Count 14 fell at the lowest end of objective seriousness for an offence pursuant to s66DB(a), and for the victim JMA both Counts 16 and 17 fell at the lowest end of the range of objective seriousness for those offences.
In respect of the offending concerning the victim IS, it was submitted that there was no breach of trust by the offender as an aggravating factor because of the presence of one of her parents at each of the training sessions. It was submitted that it was IS' mother, GS, who made the arrangements as to the time and place for each of the training sessions to occur.
It was further submitted that at no time was there physical force or coercion by the offender so as to render the sexual misconduct other than opportunistic. It was relevant that a complaint had been made to GS following which she was watching carefully and alert at sessions she attended. It was relevant that GS had characterised the offender as a "touchy feely" person.
It was submitted that in assessing the objective seriousness of the offending, regard may be had to "the issue that some of the contact involved a wide range of conduct extending to contact on or about the genital area involving the garments, with no penetrative conduct in fact or attempted. There were no threats made or ancillary violence in the form of man handling."
The offending involved touching over the clothing of a very short or momentary duration.
It was also submitted that the offender was not in a position of authority over LL. They had different roles in the church and LL had engaged in consensual hugging with the offender.
Counsel submitted that it was "possible if not probable the jury in its wisdom found the tendency. Thereafter the acts of the accused were invested with sexual gratification." It was submitted that the offender was not to be punished for the tendency. It was submitted that the offences involving touching IS on a momentary and opportunistic basis around the area of the vagina, outside the garments was offending that fell below the mid-range of offending conduct "even where the mid-range is conceived as something aside from a narrow band."
Counsel referred to the following subjective factors to be taken into account. The offender was aged between 66-70 years at the time of the offending and is now aged 73 years. He has been married for 43 years and has a supportive family. He is also a person of good character as attested to in the references from his family, friends and the wider community. All spoke to his significant contributions to the community over many decades through his work and volunteer work. It was submitted that there could be no suggestion that his good character assisted him in obtaining positions as an acolyte and netball coach thereby allowing access to the victims pursuant to s21A(5A) of the CSPA. Rather the offending was opportunistic.
It was further submitted that the offender had complied with stringent bail conditions, having reported to police well in excess of 350 occasions over a period of two and a half years.
It was submitted that the court would find the offender has good prospects of rehabilitation and that he is unlikely to reoffend. It was further submitted that the absence of contrition does not adversely affect his prospects of rehabilitation given his advanced age, his good character and otherwise exemplary life together with the extensive prosocial report from his family and the community.
Counsel submitted that the Local Court statistics are relevant to the court's consideration. As a matter of legal principle whether the matter is being dealt summarily or on Indictment should not affect the outcome unless there is a standard non-parole period. The Judicial Commission statistics here demonstrated a general range of outcomes such that fulltime imprisonment was not the inevitable outcome for the type of offending committed by the offender.
It was conceded that general deterrence and denunciation require significant weight in the sentencing process. It was further submitted the need for specific deterrence here was of lesser importance considering the offender's age, personal circumstances and very low risk of reoffending.
Given that s5(1) of the CSPA reflects the accepted principle that imprisonment is a sentence of last resort, the court would not be satisfied having considered all possible alternatives that no penalty other than imprisonment was appropriate. A community based sentence with appropriate conditions would be consistent with the purposes of sentencing and communicate accountability in this case. If fulltime custody was imposed then there should be a finding of special circumstances.
In his oral submissions counsel for the offender rehearsed his submission that it was not an aggravating factor in relation to the offences that there was a breach of trust on the basis that on all occasions there was a parent of IS present. Further it was GS who was responsible for organising the training sessions and she helped out in those sessions on a number of occasions. It was in those circumstances clear that GS was exercising authority over IS and not the offender. Further she was in a supervisory role as a conscientious mother and did not see any touching. It was submitted that there was an absence of any attempt by the offender to isolate the victim from her mother's presence.
Counsel also rehearsed his submissions that the jury must have found the tendency alleged by the Crown in reaching their guilty verdicts. It was submitted that the evidence of IS involved some evidence of exaggeration and overstatement, for example her estimate that there had been twenty training sessions when the evidence demonstrated there were far fewer.
It was further submitted that the court would not find any abuse of trust or position of authority in respect of LL, JA and JMA.
In relation to IS the court would not be satisfied that there was any conduct constituting grooming, and the offending was entirely opportunistic. Further the touching involved in each offence was close to momentary duration.
Counsel rehearsed his submissions relating to rehabilitation, specific deterrence and the offender's good character. He also rehearsed his submission relating to the very strong pro-social and familial support the offender has in the community. His compliance with onerous bail conditions has demonstrated an ability to comply with conditions no matter how onerous they are.

Submissions in reply

The Crown submitted that a community based sentence comprising of Community Corrections Orders would have to be completely concurrent in respect of each offence and therefore could not reflect the fact that there were four victims. The Crown submitted there should be some degree of accumulation between the sentences.
In response to the offender's submission that the offending involving IS occurred with a parent present on each occasion and there was no attempt to isolate the victim, the Crown submitted that such isolation did occur in relation to the "hill runs" which led to the offending in Counts 9, 11 and 13. This involved repeated offending at a time when the victim was removed from the physical presence of her mother and it was submitted was calculated to create an opportunity for the offender to offend against IS.
In respect to the offender's submission that there was no breach of trust it was submitted that in relation to the offences involving IS the offender was in a position of trust as her coach. Similarly both JA and JMA knew the offender as the president of the netball association and thus he was in a position of authority over them. In relation to the offending against LL, it was clear that the offender held a position of trust and authority in the church, he had a supervisory role over other children, for example altar servers, and that extended to LL where the first offence occurred when she was 16 years of age. Another relevant factor in the offending was the age difference between the offender and the victims. The VIS of LL informed the nature of the breach of trust given that she regarded him as a grandfatherly figure.
The Crown submitted the testimonials, relied on by the offender to establish the offending was out of character, glossed over the fact of multiple offences occurring over a number of years. The decisions of Suleman and Smith relied on by the offender were not comparable because they related to different relationships between the offender and the victim, in each case.

Determination

S 3A of the CSPA sets out the purposes of sentencing as follows:- "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community".
In assessing the objective seriousness of each offence I take into account the nature of the touching involved including the area of the body touched, the relatively short duration of each touching, whether the touching involved direct skin contact or was over clothing, the age of the victim and the age difference between the victim and the offender.
In respect of Count 1, the victim LL was just under the age of 16 years and the offence occurred when the victim and the offender had been speaking in the sacristy when she turned to leave. The offender asked where his hug was and then reached down and patted her on the buttock with his hand in what was described as a tapping for "only a second. It was very quick". It was over the victim's clothing and constituted offending at the lowest end of the range for an offence pursuant to s62M(2) of the Crimes Act which section covers a broad range of offending constituting indecent assault.
The offending in Count 3 concerned similar offending when the victim was then aged 19 years of age. The victim had been in the sacristy with her father and sister speaking to the offender. As they were leaving, her father and sister exited the room before the victim and the offender followed her and tapped her on the right buttock when they were in the doorway of the sacristy. Again the tapping was very quick, "no more than a second". When asked how she felt when the offender touched her on the bottom the victim said, "I didn't feel anything particularly, because I had gotten used to it." This offending also fell at the lowest end of the range for an offence pursuant to s61KC.
Count 5 concerned offending when the victim IS was 11 years of age and occurred during her first training session with the offender. The offender touched her on the vagina with two fingers, on the outside of her clothing, for "a second or two or three." Given the young age of the victim and the age difference, this constituted objectively serious offending below the mid-range for an offence pursuant to s66DB(a) of the Crimes Act and at the upper end of the low range for such an offence.
Count 6 concerned an occasion when the offender was training IS with her sister. The offender was standing about a metre away from IS when he touched her on the area of her vagina above her clothing with his fingers. Again this constituted objectively serious offending below the mid-range and in the upper part of the low range for an offence pursuant to s66DB(a).
Count 7 involved an offence during the same training session, as Count 6, when the offender tapped IS on the bottom outside her clothing with his hand. This offending fell at the lowest end of the range of objective seriousness for an offence pursuant to s66DB(a).
Count 8 occurred one week later at a training session where the offender had told IS to wear shorts to training. He touched IS on the vagina with two fingers on the outside of her clothing while she was getting a drink of water. This was objectively serious offending below the mid-range for an offence pursuant to s66DB(a) and within the upper part of the low range for such an offence.
Count 9 occurred a few training sessions later when the offender took IS to the bottom of the hill to do hills runs up the slope to the netball courts. The offender touched IS with two fingers on the outside of her clothing on her vagina, making her feel "so scared". This was objectively serious offending just below the mid-range for an offence pursuant to s66DB(a) of the Crimes Act.
Count 10 involved an offence on the same day when the offender touched IS on the vagina on the outside of her clothing with two fingers and said to her "good job." This was of very short duration, and the offending fell in the middle of the low range for an offence pursuant to s66DB(a) of the Crimes Act.
Count 11 involved an occasion when IS's father took her to training and then left to get a coffee. During the training session the offender touched IS with two fingers on the vagina on the outside of her clothing. This also constituted objectively serious offending just below the mid-range for an offence pursuant to s66DB(a).
Count 13, the offence of attempt to intentionally touch a person under 16 years pursuant to s66DB(a) and s344A(1) occurred during the last training session. IS crossed her legs and covered her vagina with her hands. The offender moved towards her telling her to open her legs up and move her hand and IS stepped backwards. This was objectively serious offending within the middle of the low range for an offence of attempt to sexually touch a child.
Count 14 concerned the victim JA and occurred at a netball presentation when the offender was talking to JA who was 12 years old. He patted her on the stomach for about 5 seconds with his hands. The patting made the complainant feel uncomfortable and she left to find her mother. This constituted offending at the lowest end of the range for an offence pursuant to s66DB(a) of the Crimes Act.
Count 16 concerned the victim JMA who was 15 years old and occurred at a netball gala day when they had a conversation. At the end of the conversation the victim turned to walk away and she felt the offender's hand touch her bottom in what she described as a slight tap to the right side of her bottom. This offending was at the lowest end of objective seriousness for an offence pursuant to s66DB(a) of the Crimes Act.
Count 17 involved the victim JMA who was 16 years of age. It occurred at a netball event when the offender and victim were sitting on a bench watching netball and they had a conversation about the selection of representative teams and the appointment of coaches to those teams. Towards the end of the conversation the victim adjusted her skirt and when she did so the offender slapped her on the right side of her bottom using the palm of his left hand. This constituted objectively serious conduct just below the mid-range for an offence pursuant to s61KC(a) of the Crimes Act.
The Crown submitted it was an aggravating factor in respect of each offence that the offender abused a position of trust or authority in relation to each victim, pursuant to s21A(2)(k). The offender submitted that he was not in a position of trust or authority over LL, JA or JMA and that with respect to his coaching of IS, for each of the offences either GS or IS's father were present and in loco parentis. I reject that submission and find that in respect of Counts 5 to 11 and Count 13 an aggravating factor to the offending was that the offender was in a position of authority as the coach of IS and offended notwithstanding the presence of a parent in the near vicinity. I further find that as president of the district netball association the offender was in a position of authority with respect to both JA and JMA, however this did not aggravate the offending in Counts 14, 16 and 17.
I further reject as irrelevant the submission made on behalf of the offender that there was no use of physical force or coercion, no threats or pressure placed on the victims as a mitigating factor. Had such acts occurred raises the possibility of more serious offending and is not relevant to the sentencing process here. Similarly irrelevant is the fact that there was no penetrative conduct, in fact or attempted, as submitted by counsel for the offender.
I do find however as a mitigating factor that the offending was not part of a planned or organised criminal activity and that each offence could be properly characterised as entirely opportunistic, pursuant to s21A(3)(b).
In child sexual offending general deterrence and denunciation are paramount sentencing principles. The most vulnerable members of our community must be protected from predators, and a clear message must be sent to like minded members of the community that Parliament has prescribed lengthy periods of imprisonment as maximum sentences for such offending and that the courts will impose condign punishment in appropriate cases. Specific deterrence is also important given the number of victims, the period of time over which the offending occurred and the fact that there was no voluntary cessation of the offender's criminal conduct.
I have also taken into account the absence of remorse, contrition and insight into the offending as outlined above.
I do not find beyond reasonable doubt that, as reported by the psychologist, "hostility to women is a likely risk factor" for the offender. It does not accord with the evidence given at trial as to his character nor with the testimonials referred to above. I accept he is at a low risk of recidivism and therefore, notwithstanding his lack of remorse, his prospects of rehabilitation are reasonable.
The offender has significant subjective factors to be taken into account. He is now a man aged 73 years who has led an otherwise exemplary life both in respect of his own career in the public service and his voluntary work carried out over decades, both for his local church, his local netball club and ultimately as president of the district netball association. I accept the testimonials which state that the index offending is out of character for him.
I have taken into account the maximum penalties outlined above (and the standard non-parole period of 8 years for Count 1). The maximum penalty of 10 years imprisonment (for Counts 1, 5 to 11, 14 and 16) and 5 years imprisonment (for Counts 3 and 17) indicate the seriousness with which Parliament views such offending and are a guidepost in the sentencing process. The standard non-parole period for Count 1 does not apply here given my finding as to the objective seriousness of that offending set out in [63] above.
I have also taken into account the VIS of LL, which affirms the ongoing impact of predatory offending on children.
Taken individually, none of the offences cross the threshold in s5 of the CSPA warranting a sentence of imprisonment. The offences in Counts 6 and 7, and those in counts 9 and 10 occurred on the same day and therefore warrant some concurrency in the sentencing process. The most serious offending are clearly Counts 5, 6, 8, 9, 10 and 11 concerning the victim IS, and Count 17 concerning the victim JMA. I have taken into account that there were four separate victims and that the offending occurred over a period of some four years. However each offence was of very short duration and none of the offending involved skin on skin contact or grooming. The combination of all of the offences does not warrant a finding here that, having considered all possible alternatives, no penalty other than imprisonment is appropriate pursuant to s5 of the CSPA.
I am not satisfied that the good character and lack of previous convictions of the offender was of assistance to the offender in the commission of the index offences and therefore the offender's good character may be taken into account as a mitigating factor. I also take into account the onerous bail conditions imposed on the offender and his strict compliance therewith, including reporting to Police on over 350 occasions.
The undertakings proffered on behalf of the offender are misconceived and do not assist him in the sentencing process. First, the fact that the person giving the undertaking accepts the verdict of the jury when the offender does not carries no weight. Secondly, the undertaking and promise to faithfully comply with any supervision orders is irrelevant to the court's powers under the CSPA and is unenforceable. Whilst the provision of the undertakings was no doubt well meaning, they are of no assistance to the court.
I am cognizant that subjective factors should not outweigh principles of deterrence and denunciation when sentencing for serious criminal offences. However given the low objective seriousness of most of the index offending as set out above, I am satisfied that the fact of the conviction and a community based sentence with stringent conditions will, in this case, satisfy the purposes of sentencing set out in s3A of the CSPA.
I therefore propose to sentence the offender in respect of each of the offences as follows:- 1. Count 1 - offence pursuant to s61M(2) of the Crimes Act 1900 - the offender is convicted and I make a conditional release order pursuant to s9(1)(a) of the CSPA for a term of 6 months. 2. Count 3 - offence pursuant to s61KC(a) of the Crimes Act 1900 - pursuant to s10A of the CSPA the offender is convicted without imposition of any other penalty. 3. Count 5 - offence pursuant to s66DB(a) of the Crimes Act 1900 - the offender is convicted with a Community Corrections Order pursuant to s8 of the CSPA for a term of 12 months. 4. Count 6 - offence pursuant to s66DB(a) of the Crimes Act 1900 - the offender is convicted with a Community Corrections Order pursuant to s8 of the CSPA for a term of 12 months. 5. Count 7 - offence pursuant to s66DB(a) of the Crimes Act 1900 - the offender is convicted with a Community Corrections Order pursuant to s8 of the CSPA for a term of 12 months. 6. Count 8 - offence pursuant to s66DB(a) of the Crimes Act 1900 - the offender is convicted with a Community Corrections Order pursuant to s8 of the CSPA for a term of 12 months. 7. Count 9 - offence pursuant to s66DB(a) of the Crimes Act 1900 - the offender is convicted with a Community Corrections Order pursuant to s8 of the CSPA for a term of 18 months, including a community service work condition. 8. Count 10 - offence pursuant to s66DB(a) of the Crimes Act 1900 - the offender is convicted with a Community Corrections Order pursuant to s8 of the CSPA for a term of 18 months. 9. Count 11 - offence pursuant to s66DB(a) of the Crimes Act 1900 - the offender is convicted with a Community Corrections Order pursuant to s8 of the CSPA for a term of 12 months. 10. Count 13 - offence pursuant to s66DB(a) and s344A(1) of the Crimes Act 1900 - the offender is convicted with a Community Corrections Order pursuant to s8 of the CSPA for a term of 12 months. 11. Count 14 - offence pursuant to s66DB(a) of the Crimes Act 1900 - the offender is convicted and I make a conditional release order made pursuant to s9(1)(a) of the CSPA for a term of 6 months. 12. Count 16 - offence pursuant to s66DB(a) of the Crimes Act 1900 - the offender is convicted and I make a conditional release order made pursuant to s9(1)(a) of the CSPA for a term of 6 months. 13. Count 17 - offence pursuant to s61KC(a) of the Crimes Act 1900 - the offender is convicted with a Community Corrections Order pursuant to s8 of the CSPA for a term of 2 years on conditions including a community service work condition.
I am satisfied having regard to principles of totality and proportionality that the particular legal and social consequences for the offender given the convictions for the offending far outweigh the requirements of punishment, denunciation and general and specific deterrence and that the purposes of sentencing set out in s3A of the Act are adequately achieved by the imposition of the conditional bonds referred to above - see R v Mauger [2012] NSWCCA 51 per Harrison J (with whom Beazley JA, as her Honour then was, and McCallum J, as her Honour then was, agreed).

Orders

I hereby order as follows:- 1. You are convicted of the following offences:- 1. Count 1 that between 30 November 2016 and 24 January 2017, at BH in the State of New South Wales, you did assault LL and at the time of the assault committed an act of indecency on LL, a child then under the age of 16 years, namely 15 years - an offence contrary to s61M(2) of the Crimes Act 1900. 2. Count 3 that between 1 November 2020 and 31 December 2020, at BH in the State of New South Wales, you did intentionally sexually touch LL without her consent and knowing that LL was not consenting - an offence contrary to s61KC(a) of the Crimes Act 1900. 3. Count 5 that between 1 March 2019 and 12 June 2019 at K in the State of New South Wales, you did intentionally sexually touch IS, being a child who was of or above the age of 10 years and under the age of 16 years, namely 11 years old - an offence contrary to s66DB(a) of the Crimes Act 1900. 4. Count 6 that between 1 March 2019 and 12 June 2019 at K in the State of New South Wales, you did intentionally sexually touch IS, being a child who was of or above the age of 10 years and under the age of 16 years, namely 11 years old - an offence contrary to s66DB(a) of the Crimes Act 1900. 5. Count 7 that between 1 March 2019 and 12 June 2019 at K in the State of New South Wales, you did intentionally sexually touch IS, being a child who was of or above the age of 10 years and under the age of 16 years, namely 11 years old - an offence contrary to s66DB(a) of the Crimes Act 1900. 6. Count 8 that between 1 March 2019 and 12 June 2019 at K in the State of New South Wales, you did intentionally sexually touch IS, being a child who was of or above the age of 10 years and under the age of 16 years, namely 11 years old - an offence contrary to s66DB(a) of the Crimes Act 1900. 7. Count 9 that between 1 March 2019 and 12 June 2019 at K in the State of New South Wales, you did intentionally sexually touch IS, being a child who was of or above the age of 10 years and under the age of 16 years, namely 11 years old - an offence contrary to s66DB(a) of the Crimes Act 1900. 8. Count 10 that between 1 March 2019 and 12 June 2019 at K in the State of New South Wales, you did intentionally sexually touch IS, being a child who was of or above the age of 10 years and under the age of 16 years, namely 11 years old - an offence contrary to s66DB(a) of the Crimes Act 1900. 9. Count 11 that between 1 March 2019 and 12 June 2019 at K in the State of New South Wales, you did intentionally sexually touch IS, being a child who was of or above the age of 10 years and under the age of 16 years, namely 11 years old - an offence contrary to s66DB(a) of the Crimes Act 1900. 10. Count 13 that between 1 March 2019 and 12 June 2019 at K in the State of New South Wales, you did attempt to intentionally sexually touch IS, being a child who was of or above the age of 10 years and under the age of 16 years, namely 11 years old - an offence contrary to s66DB(a) and s344A(1) of the Crimes Act 1900. 11. Count 14 that between 31 August 2019 and 1 October 2019, at K in the State of New South Wales, you did intentionally sexually touch JA, being a child who was of or above the age of 10 years and under the age of 16 years, namely 12 years old - an offence contrary to s66DB(a) of the Crimes Act 1900. 12. Count 16 that on 28 July 2019 at R in the State of New South Wales, you did intentionally sexually touch JMA, being a child who was of or above the age of 10 years and under the age of 16 years, namely 15 years - an offence contrary to s66DB(a) of the Crimes Act 1900. 13. Count 17 that on 5 September 2020 at T in the State of New South Wales, you did intentionally sexually touch JMA without her consent and knowing that JMA was not consenting - an offence contrary to s61KC(a) of the Crimes Act 1900. 1. In respect of each offence you are sentenced as follows:-

Count 1 1. Pursuant to s9(1)(a) of the CSPA I make a Conditional Release Order. 2. The term of the order is for 6 months. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before the court if called on to do so at any time during the term of the order.

Count 3 1. Pursuant to s10A of the CSPA after convicting you I do not impose any further penalty.

Count 5 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 12 months. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before court if called on to do so at anytime during the term of the order.

Count 6 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 12 months. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before court if called on to do so at anytime during the term of the order.

Count 7 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 12 months. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before court if called on to do so at anytime during the term of the order.

Count 8 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 12 months. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before court if called on to do so at anytime during the term of the order.

Count 9 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 18 months. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before court if called on to do so at anytime during the term of the order. 1. The following additional condition will apply: 1. A community service work condition requiring community service work for 150 hours.

Count 10 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 18 months. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before court if called on to do so at anytime during the term of the order.

Count 11 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 12 months. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before court if called on to do so at anytime during the term of the order.

Count 13 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 12 months. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before court if called on to do so at anytime during the term of the order.

Count 14 1. Pursuant to s9(1)(a) of the CSPA I impose a Conditional Release Order. 2. The term of the order is for 6 months. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before the court if called on to do so at any time during the term of the order.

Count 16 1. Pursuant to s9(1)(a) of the CSPA I impose a Conditional Release Order. 2. The term of the order is for 6 months. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before the court if called on to do so at any time during the term of the order.

Count 17 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 2 years. 3. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before court if called on to do so at anytime during the term of the order. 1. The following additional condition will apply:- 1. A community service work condition requiring the performance of community service work for 150 hours.

Each of these orders are to commence from today.
You are to report to Sutherland Community Corrections Office within 7 days.

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: 16 June 2023

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