R v Doyle

District Court of NSW|2020-10-22

REMARKS ON SENTENCE

The offender is to be sentenced in respect of the following offences to which he entered pleas of guilty on 30 September 2020, in full satisfaction of an Indictment upon which he had been arraigned on 28 September 2020. The offences all occurred between 8 August 1978 and 22 March 2010. They are as follows: Count 2 (ex officio) - between 8 August 1978 and 7 August 1980, indecent assault on a male JP, pursuant to s 81 of the Crimes Act 1900. The maximum penalty for this offence is 5 years imprisonment and there is no Standard Non-Parole Period. Count 6 - between 28 January 1997 and 31 December 1997, aggravated indecent assault on JE, a child under authority, pursuant to s 61M(1) of the Crimes Act 1900. The maximum penalty for this offence is 7 years imprisonment and there is a Standard Non-Parole Period of 5 years imprisonment. Count 8 - between 1 July 2007 and 22 March 2008, aggravated indecent assault on BR, a child under 16 years, pursuant to s 61M(1) of the Crimes Act 1900. The maximum penalty for this offence is 7 years imprisonment and there is a Standard Non-Parole Period of 5 years imprisonment. Count 9 - between 1 September 2007 and 22 March 2008, aggravated indecent assault on BR, a child under 16 years, pursuant to s 61M(1) of the Crimes Act 1900. The maximum penalty for this offence is 7 years imprisonment and there is a Standard Non-Parole Period of 5 years imprisonment. Count 13 - between 1 September 2007 and 22 March 2008, aggravated indecent assault on BR, a child under 16 years, pursuant to s 61M(1) of the Crimes Act 1900. The maximum penalty for this offence is 7 years imprisonment and there is a Standard Non-Parole Period of 5 years imprisonment. Count 14 - between 7 July 2009 and 22 March 2010, aggravated indecent assault on BR, a child under 16 years, pursuant to s 61M(2) of the Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment and there is a Standard Non-Parole Period of 8 years imprisonment.

The sentence hearing

The matter was listed for sentence hearing on 22 October 2020. On that day, the Crown Sentence Summary was tendered and became Ex A.
Ex A included Victim Impact Statements of JE and JP, which were both read to the court by the victims. It also included a Victim Impact Statement from BR, which was read to the court on his behalf by Ms M Wiley. The Victim Impact Statements are referred to below.
The matter was unable to be completed on 22 October 2020 due to the unavailability of a neuro-psychological report on behalf of the offender. The sentence hearing was therefore stood over to 10 December 2020.
Exhibit A included a Statement of Agreed Facts which may be summarised as follows.
The offender was the owner of a movie theatre at Kogarah from 1968 until 2013. He regularly employed young persons to work as ushers, service the ticket cashier, sell food items and to clean the theatre at the end of sessions.

Count 2 (ex officio) indecent assault on JP pursuant to s 81 of the Crimes Act 1900

JP commenced a paper run in the Kogarah area when he was 14 or 15 years of age. The offender met JP when he bought papers from him and subsequently met his father. He asked JP if he would like to work for him at the theatre and JP commenced working for him in about August 1978. After working at the theatre for a couple of months, at the end of his shift, the offender asked JP if he wanted to see the camera projection room. In that room, the offender asked JP to place a film reel on a rack on the wall and as JP reached up with both hands to place it on the rack, the offender reached around him from behind and put his right hand on JP's penis over his clothing. The accused placed his hand inside JP's track pants and pulled out JP's penis. He then placed JP's penis into his mouth and started to suck and stroke his penis for a few minutes until JP ejaculated into the offender's mouth, and the offender swallowed it.
This conduct constituted Count 1, an offence pursuant to s 81 of the Crimes Act 1900, on the Form 1 attached to Count 6.
After some weeks, JP returned to work at the theatre. On a night where JP had tallied the till in the ticket office, he took the till into the offender's office. He did not know the offender was in the office. The office door closed behind him and the offender placed his hand on JP's shoulder from behind and spun JP around.
The offender put his hand inside JP's pants and took his penis out. The offender then got down onto his knees and put JP's penis into his mouth and began to suck it until JP ejaculated into his mouth. The incident did not last very long, and after it the offender said to JP: "You value your job here, you won't tell anyone about what happened, especially Rex." JP never returned to work at the theatre and told the offender, on an occasion when he was selling papers, that he would not be coming back to work there. The offender went to JP's house to drop off his wages, and said to him: "Remember what I told you."
This conduct constituted Count 2, an offence pursuant to s 81 of the Crimes Act 1900.

Count 6 - Aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900

In 1997, JE, who was born in 1981, was about 15 years old and sought employment at the offender's cinema. He usually worked the nightshift on Fridays and Saturdays as an usher and became good friends with the offender, who invited him out to dinner. JE had a female friend, Candice, who would meet him at the cinema. The offender got to know Candice, and invited JE and Candice to dinner at Centre Point Tower in Sydney. They drove to the restaurant in the offender's car and over dinner, the offender offered them alcohol.
Following the dinner, the offender drove the two young people back to his home for a swim. Neither had swim wear, but the offender insisted they could swim and provided swimmers to JE, and Candice was given a t-shirt. When JE got in the pool, the offender swam up to him and started to grab him around the waist under the water, and continued to swim very close to him. The offender grabbed JE's penis over the top of his swimmers and JE swam away from him. This conduct constituted Count 5 on the Form 1.
A few weeks later, JE was at work at the theatre and was asked by the offender to come into his office to speak about a motor vehicle JE wanted to buy.
JE walked into the office and sat on the edge of the table. The offender sat close to him and was so close that JE felt uncomfortable. The offender then put his hands down the front of JE's pants, on top of his penis, then unzipped JE's pants zipper. The offender then touched JE's penis skin to skin and pulled it from underneath his underwear to expose it. The offender then masturbated JE's penis using one hand, moving his hand back and forth, until JE's penis became erect. The offender then stopped and told JE to put his penis away, following which JE felt ashamed and confused. This conduct constituted Count 6 on the Indictment, an offence pursuant to s 61M(1) of the Crimes Act 1900.

Count 8 - aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900

BR was born in March 1995 and met the offender through his father's social car club. The offender became friendly with BR's family at a time when they were struggling financially, as BR's father was ill with cancer. The family would visit the offender at his house for movie nights and those events progressed to being invited for dinner at a Chinese restaurant, with the offender always paying, over a period of 12 to 18 months. On occasion, the offender invited BR and his brothers to stay overnight at his house, and eventually BR commenced to attend the offender's house by himself. At a time when he was aged 12 years and 5 months, in August 2007, BR was at the offender's house on his own from Friday night until Monday morning.
On the Sunday, the offender had bought BR some chewing gum. Whilst BR was chewing it, the offender asked him to breathe it into his face. When he did so, the offender kissed BR on the lips, putting his tongue in BR's mouth. The offender then took BR up to his bedroom, continuing to kiss him. This conduct comprised Count 7 on the Form 1 attached to Count 13.
The offender then took BR out to lunch. On their return to the house, the offender gave BR underwear and took him to his bedroom. The offender then kissed BR as he was lying on his back on the bed. He then placed BR on top of him and the offender was thrusting against BR, with BR reciprocating. This constituted Count 8, an offence pursuant to s 61M(1) of the Crimes Act 1900. Following this, the offender and BR went to sleep. When BR woke up, he had a red rash around his mouth and the offender told him that if anyone asked, to say that it was wind burn. BR's mother did ask him about it and he told her that it was wind burn.

Count 9 - aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900

On the next occasion when BR stayed at the offender's home after dinner, the offender watched BR have a shower. The offender then got into the shower naked with BR. Following the shower, they both dried themselves, put on underwear and got onto the offender's bed. They were watching tv and the offender started to kiss BR on the mouth, passionately. This constituted Count 9, an offence pursuant to s 61M(1) of the Crimes Act 1900.
The offender started to masturbate himself, and BR copied him and started to masturbate as well. This conduct constituted Count 10, commit act of indecency, an offence pursuant to s 61N(1) of the Crimes Act 1900, on the Form 1 attached to Count 13.

Count 13 - aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900

On another occasion, BR was lying next to the offender on the offender's bed and the offender rolled BR on top of him, chest to chest. Whilst they were kissing, the offender thrust his erect penis against BR's belly button. This conduct constituted Count 11, an offence of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900, on the Form 1 attached to Count 13.
Both the offender and BR then rolled onto their own backs, and the offender started masturbating himself. This conduct constituted Count 12, an offence of commit act of indecency pursuant to s 61N(1) of the Crimes Act 1900, on the Form 1 attached to Count 13.
BR then started playing with his own erect penis. The offender rolled towards BR, kissing him. The offender then put his right hand on BR's penis for a short time, stroking it up and down before BR ejaculated. This was the conduct which constituted Count 13, an offence of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900.
Following this, the offender asked BR if that was the first time BR had ejaculated, and BR said "yes". BR was shocked by what had happened and decided he did not want to go over to the offender's house as much. BR told his family that he did not want to go there any more, as the offender was touching him, however, they did not believe him.

Count 14 - aggravated indecent assault, pursuant to s 61M(2) of the Crimes Act 1900

Between July 2009 and March 2010, the offender took BR to see a movie, following which they returned to the offender's house and went to his bed, where the offender kissed BR on the mouth. This was the conduct that constituted Count 14, an offence of aggravated indecent assault pursuant to s 61M(2) of the Crimes Act 1900.

Matters on the Form 1 attached to Count 6

In addition to Count 1 and Count 5, referred to above, the following matters were on the Form 1 attached to Count 6.
In late 1980, VC, who was born in September 1966, was 14 years old and started working for the offender at his theatre. When VC was 15 years of age, the offender gave him a pair of white overalls to do cleaning work in. On an occasion when the two of them were alone in the cinema cleaning, the offender said to VC: "Oh, your belly. That is no good." The offender patted VC's belly. VC's overalls were unbuttoned to his navel. The offender then pulled the overalls apart, exposing VC's naked genitals, as VC was not wearing any clothes underneath.
Whilst VC's penis was exposed, the offender continued to rub his hands over his belly and said to him, "Oh, why, why the belly". This occurred for a period of less than 10 seconds before VC pulled his overalls up, following which the offender said, "Oh, sorry … I shouldn't have done that". This conduct constituted Count 3 on the Form 1, an offence of indecent assault pursuant to s 81 of the Crimes Act 1900.
When CK was 14 or 15 years old, he applied for a job at the offender's cinema. The offender asked him if he wanted to see behind the scenes, and took CK to the projection room where he asked CK to take his shirt off, which he did. The offender said, "you look really fit" and started to rub CK's belly with one hand in a circular motion whilst his other hand was on CK's shoulder. The offender told CK to bring his resume back and a week later, CK returned to the theatre with his resume. They went to the projection room and the same thing happened.
Sometime after that, the offender invited CK to go for a meal at KFC, following which they went to the offender's house. After they finished eating, the offender asked to see CK's "abs", and CK lifted his shirt up and the offender made the same motions on CK's stomach, but put his fingers inside CK's pants, brushing his pubic hair underneath his clothing. This constituted Count 4 on the Form 1, an offence of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900. The phone then rang and the offender stopped touching CK. The offender had to go back to the theatre and dropped CK in Kogarah.
Exhibit A included the offender's criminal antecedents. On 28 August 2012, following a trial at which the offender was convicted on 38 counts, the offender was, following a Crown appeal on sentence, sentenced to 9 years imprisonment from 4 July 2012, with a non-parole period of 6 years and 6 months expiring on 3 January 2019.
The sentence hearing was adjourned until 10 December 2020 as the offender was awaiting a psychological report. Directions were made for further submissions to be filed by the parties prior to the resumed sentence hearing.
On 10 December the offender tendered a bundle of documents which became Ex 1 and were identified in the index as Ex 1.1 to 1.9. The documents included testimonials from Mr Stuart Greene dated 16 October 2020 (Ex 1.1), Mr Stephen Hayes dated 18 October 2020 (Ex 1.2), and Mr Mark Barbeliuk dated 7 December 2020 (Ex 1.8). Both Mr Greene and Mr Hayes had known the offender for many years and spoke highly of his contribution to the community and the theatre, his generosity in contributions to charities, and his volunteer work. Both were aware of the charges the offender was being sentenced for and offered their support to the offender upon his release to the community.
Mr Barbeliuk stated that he had known the offender for 39 years. Since his incarceration in 2012, he had visited the offender approximately 120 times and he held grave fears that the offender would not survive much longer in custody. Mr Barbeliuk stated that the offender's physical health had deteriorated. He outlined charitable and volunteer work the offender had carried out over 20 years, and described him as "a genuinely kind, gentle, and generous man who has contributed enormously to the community in which he worked."
Mr Barbeliuk stated that he had no doubt that the offender represented no threat whatsoever to the community and was determined to assist in his reintegration into the community. He referred to a number of assaults the offender had suffered in custody and the failure of Justice Health to respond to his numerous requests for medical care. Finally, Mr Barbeliuk asked the court to show the offender mercy and grant him release as soon as possible.

The offender's medical evidence

The offender relied on reports from Dr Tanveer Ahmed dated 14 October 2020 (Ex 1.3) and a report of Dr Donald Rowe dated 3 December 2020 (Ex 1.4). Both doctors were required for cross-examination by the Crown.
Dr Rowe is a consultant clinical psychologist and neuro-physiologist who interviewed the offender via audio visual link for approximately six hours on 26 and 27 November 2020. He also interviewed Mr Barbeliuk on 30 November 2020 for approximately 45 minutes.
Dr Rowe had been qualified with the agreed facts, a certificate of conviction, the report of Dr Ahmed dated 14 October 2020, and Justice Health records. He administered some 13 psychological and neuro-psychological tests, the results of which are outlined in his report. Dr Rowe also set out the offender's criminal history by way of conviction for the multiple child sex offences in 2012, referred to above.
Under the heading "Background", Dr Rowe reported that the offender did not report any difficulties growing up. However, Mr Barbeliuk provided a history that the offender's father "was not a very nice man", who was abusive towards him and violent towards his mother.
Dr Rowe reported that during his interview of the offender, he displayed apparent neuro-cognitive difficulties, raising a concern that he was suffering an early form of dementia. Dr Rowe noted that Dr Ahmed had also expressed concern that the offender could be suffering from an early form of dementia and recorded that Mr Barbeliuk had noticed that the offender had declined over the past two or three years.
Dr Rowe recorded that neuro-psychological testing identified clinically significant deficits on specific tests of attention, memory and executive functions. The offender had, however, displayed reasonable conceptual ability, suggesting at least an average premorbid intellectual ability.
Dr Rowe expressed an opinion that the offender's presentation, together with his neuro-psychological test results, suggested an organic cause "likely that of an early dementing condition such as Lewy Bodies and/or a Vascular-related condition or a mixed dementia". He explained that Lewy Bodies Dementia ("LBD") is a gradually progressive disorder with insidious onset typically in one's mid‑seventies. A defining feature was fluctuating cognition with pronounced variations in attention and alertness, as noted in the offender's presentation and on testing.
Dr Rowe noted an entry in the Justice Health clinical notes which read: "? Onset of dementia … seems incoherent with thought at times … frail and jittery in mobility … past six months he gets dizzy."
Dr Rowe noted a further memory/amnesic component to the offender's dementing condition, suggesting a probability of other forms of dementia such as Alzheimer's. Dr Rowe opined that a diagnosis of Neuro-Cognitive Disorder and Lewy Bodies Dementia ("NCDLB") resulted in a poor prognosis, the average duration of survival following diagnosis being between two and eight years, with factors such as depression and/or delirium potentially accelerating a patient's decline.
Dr Rowe noted that on a screening test for Major Depressive Disorder, the offender was indicated as suffering from such a disorder as defined in DSM-V. He stated, however, that he did not believe the offender was suffering from depression at the time of committing the offences.
Dr Rowe noted the offender appeared to have a largely exclusive predilection to young pubescent males aged 12 to 15 years, suggesting a hebephilic profile. He stated: "Whilst the offender shows some paedophilic tendencies, he shows a greater proportion of hebephilic tendencies which in some instances is associated with a better prognosis with respect to rehabilitation."
Dr Rowe referred to Dr Ahmed's opinion that the offender was possibly afflicted with Autism or Autism Spectrum Disorder ("ASD"), or high functioning ASD known as Asperger's Syndrome. He stated his discussion with Mr Barbeliuk about the offender's social history supported a possible diagnosis of ASD based on his reference to odd eccentric behavioural characteristics and social irregularities. Further testing suggested a possible diagnosis of high functioning ASD or Asperger's Sydrome. Dr Rowe stated that these conditions could increase an individual's vulnerability to acting on paedophilic or hebephilic tendencies.
Under the heading "Relevance of Mr Doyle's mental illnesses to the offences committed", Dr Rowe provided a commentary on how the conditions outlined above can render persons inflicted with them vulnerable to acting on paraphilic or hebephilic tendencies or interests. Learned Queen's Counsel for the offender, at the outset of the hearing, conceded that the opinions of Dr Rowe and Dr Ahmed were not relied on for the purpose of demonstrating a causal nexus between any psychological conditions suffered by the offender and the index offending.
Under the heading "Progress and prognosis", Dr Rowe noted that the offender's insight into his paedophilic actions was deteriorating due to his apparent dementing condition, however, he was able to understand the nature of the offences and commented that it is a "disgusting and heinous crime". The offender's nine years of incarceration had been a particularly negative experience, and he had developed a Major Depressive Disorder and a Neuro‑cognitive Disorder. His current level of depression was in the moderately severe range, including suicidal ideation.
Dr Rowe completed the Static-2002R and assessed the offender as being of low risk of sexual recidivism, largely attributed to his older age. He opined: "His potential danger to the general community upon his release is now most likely very low."
Dr Rowe further opined that it would be difficult for the offender to access specialist medical care and assessment from Justice Health system, which would lead to a potential rapid decline.
Dr Rowe concluded that the offender's, "Deprived childhood and adolescence", together with symptoms of ASD, can interact in a manner which leads these individuals into a vulnerable mental state where they are more likely to act on their paedophilic tendencies, without care or consideration of a victim and/or the consequences of their deviant sexual behaviours." He also referred to a significant psychiatric overlay in the offender's disorder based on his reports of significant ongoing trauma during his incarceration, "and this may be contributing to a type of Dissociative Disorder or pseudo dementia."
Dr Rowe was cross-examined at some length. He acknowledged that the history that he took from Mr Barbeliuk as to the offender's family background was quite the opposite from the history taken by him from the offender himself, who described a good relationship with his mother and father, whom he described as "wonderful people". It was put to Dr Rowe that he relied on the history given by Barbeliuk, rather than what the offender told him. However, Dr Rowe gave evidence that the offender's recollection was not good enough to rely upon. He did not know that the offender had known Mr Barbeliuk since he was 15 years of age, or that the offender had taken Mr Barbeliuk to the United State of America when he was 15 years of age without his parents. Nor was he aware of evidence given by Mr Barbeliuk in his first trial to the effect that one of the counts was impossible of proof, which was clearly rejected by the jury in their finding of guilt.
Dr Rowe agreed that the history obtained by him from Mr Barbeliuk was the genesis of his conclusions and that Dr Ahmed had also relied on the history given by Mr Barbeliuk. However, he said it was a small part, and not a significant contributing factor to the conclusions in his report. Similarly, it was a small part in his commentary on the deterioration of the offender's condition, and without it, he would have come to the same conclusion.
Dr Rowe was cross-examined about the Justice Health records and noted that the resources of Justice Health were limited.
Dr Rowe was also cross-examined about his finding of possible LBD and gave evidence that the offender would need imaging to be conclusive, however, on the balance of probabilities, it was a correct diagnosis. He conceded that it was not based on hospitalisation or injury as referred to by him in [27] of his report. Further, he had relied on the history from Mr Barbeliuk for his finding that the offender had suffered "resting tremors". His finding of "a delusional state of mind" had, however, come from the offender's clinical presentation, during which he repeated himself a lot.
It was put to Dr Rowe that he relied substantially on the history provided by Mr Barbeliuk. He gave evidence that that history was confirmatory of what he saw in his examination of the offender. It was put to Dr Rowe that he was not able to state whether the depression suffered by the offender would lead to a more rapid decline necessarily, however, he gave evidence that statistically, there was a significant chance that he would decline more rapidly as a result of his major depression.
In respect of Dr Rowe's classification of the offender's hebephilic profile, he was asked about the significance of the offender having photos of boys aged between 12 and 15 years in sexualised positions. Dr Rowe gave evidence that it would make his diagnosis of hebephilia more chronic, that is that the offender suffered stronger hebephilic tendencies than paedophilic tendencies.
Dr Rowe was cross-examined on his commentary as to the grooming conduct of the offender being largely opportunistic. He drew a distinction between the offender grooming boys aged between 12 and 15 who he came into contact with through his theatre, as opposed to him being "out walking the streets trying to pick-up boys". He adhered to his evidence that it was not largely opportunistic offending.
Dr Rowe agreed that he relied on the history provided by Mr Barbeliuk with respect to his diagnosis of ASD. He gave evidence that Dr Ahmed had also done so and he relied on his opinion. This related to his conclusion as to the offender's eccentric behavioural characteristics. Dr Rowe gave evidence that this was not a focus, but he did consider it in coming to his conclusions.
Dr Rowe agreed that the offender had expressed no remorse for his offending behaviour. Whilst he had acknowledged in his report some insight, he was now unable to demonstrate insight because of his dementive condition. Dr Rowe gave evidence that the offender expressed no remorse specific to the victims of the index offences.
Dr Rowe was cross-examined about his conclusion that the offender was a low risk of recidivism, given that the offending had occurred between 1978 and 2010, a period of over 30 years. The static 2002R test, he agreed, relied on factors such as the number of times the offender had been previously sentenced. In his case, that was only one occasion, however, that occasion involved 38 offences and five victims. Nor had the offender been sentenced in respect of any "non-contact sex offence", meaning child abuse material. Dr Rowe agreed the static test was not perfect and that other factors had to be taken into account.
Dr Ahmed, consultant psychiatrist, provided a report dated 14 October 2020 (Ex 1.3). He examined the offender by audio visual link on the same day and was qualified with the history of the charges, facts sheet and Justice Health records. He also conducted a phone interview with Mr Mark Barbeliuk, who he described as "close friend and power of attorney".
Dr Ahmed recorded a family history in which the offender described his mother as "very sweet" and his father as being "quite respectable". A different version was obtained from Mr Barbeliuk, who described the offender's father as being often away overseas, and as being "quite difficult and verbally abusive" and "not a good man".
Mr Barbeliuk gave a further history of the offender as being an eccentric, with unusual interests in a musical instrument, a passion for performance and an interest in vintage cars. On mental state examination, Dr Ahmed stated that the offender was not thought disordered. His effect was reactive, however, his thought content was very much eccentric. He denied any thoughts of self‑harm and symptoms such as auditory hallucinations or "ideas of reference".
Under the heading "Opinion", Dr Ahmed stated: "It was not clear that Mr Doyle's cognitions had deteriorated in old age. In fact it is more consistent with him possibly having a rigid personality style in keeping with the Autistic Spectrum. This would explain when there were new people or unexpected change that he became somewhat disoriented, irritable and briefly unsettled."
Dr Ahmed stated that it was accepted knowledge that autism features can worsen with age. There was also a question of him having early dementia, however, this was not clear during his interview.
Dr Ahmed further stated: "There may be some physically deteriorating health including vascular disease." There was no reference to worsening conditions in the Justice Health records.
Dr Ahmed concluded that he believed the offender satisfied the criteria for ASD. He described him as: "Someone who is socially inept, a little naïve, but quite skilled at technical, structured and repetitive tasks."
Dr Ahmed concluded that it was unlikely that the offender could be a threat in any form to others; he was relatively frail and was more interested in eccentric pursuits.
In cross-examination, it was put to Dr Ahmed that he relied on the history provided by Mr Barbeliuk rather than that provided by the offender. He gave evidence that both histories were relevant. It was put that the history provided by Mr Barbeliuk was a significant factor in his conclusions and he gave evidence that it was one piece of information which was a significant history. Dr Ahmed went on to say: "But it was not a substantial factor in the wider formulation of my opinions." For example, he did not accept from Mr Barbeliuk that the offender was eccentric, rather, he formed that opinion upon his interview of him and Mr Barbeliuk added that history. He did not, however, rely heavily on the offender's eccentricity as a significant factor. Rather, relying on the histories provided by Mr Barbeliuk, he had noted them.
Dr Ahmed was challenged as to his conclusion that the offender satisfied the criteria for ASD on the basis that he was not only eccentric, but successful in business. Dr Ahmed described this as "simplistic", however, the information provided was consistent with the offender being on the spectrum. Further, he had no long term relationship. Dr Ahmed agreed that he was clearly not at the severe end of the spectrum and it was not clear cut that his cognitive condition had deteriorated in old age. Whilst acknowledging that he had accepted the history from Mr Barbeliuk, he had also taken into account what the offender had said to him during his interview. He gave evidence that it was also important, and he had taken into account as another factor, what the offender had not said. This was relevant in his assessment.
Finally, Dr Ahmed agreed that the offender had expressed no remorse for his offending.

The Crown submissions

The Crown relied on a detailed written outline of submissions. The Crown submitted first that the offender was entitled to a 5% utilitarian discount on sentence, given that the pleas of guilty were entered on 30 September 2020 after legal argument, but before judgment and before any evidence was called in the Crown case. The 5% discount arose by application of s 25D(3) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") to Count 2, and s 25D(2)(c) to Counts 6, 8, 9, 13 and 14.
The Crown noted that the offender has been parole refused since 3 January 2019 because the State Parole Authority was not satisfied that release to parole was in the interests of the safety of the community. The Crown submitted that I had a discretion to commence a sentence of imprisonment any time from 3 January 2019 up until the date of sentence.
The Crown submitted that the following matters should be taken into account in assessing the objective seriousness of the offending: 1. Count 2 This offence involved the offender fellating JP in 1978 or 1980, when JP was 14 or 15 years old. The offence occurred at the theatre which the offender owned and the Crown submitted it involved a significant breach of trust and the abuse of his position of authority as an aggravating factor pursuant to s 21A(2)(k) of the CSPA. The Crown submitted that the victim was very young and there was no element as to age in relation to this offence. The victim's young age and the offender's position of authority were seriously aggravating factors when considered with the type of conduct involved, namely, fellatio until ejaculation and then swallowing it. In addition, there was urging by the offender or a threat not to tell, which the Crown submitted meant that the offence fell towards the top of the range for an offence pursuant to s 81 of the Crimes Act 1900. 1. Count 6 This offence involved the offender masturbating JE in 1997 when he was 16 years old. JE worked for the offender and the offence again occurred at his place of employment. The Crown submitted this involved a significant breach of trust and abuse of the offender's position of authority, noting that (under authority) is already an element of this offence. The Crown submitted that this was not an isolated incident with JE, as a few weeks earlier the offender had rubbed his hand over JE's penis on the outside of his swimmers in the offender's pool. The Crown submitted that the objective seriousness of this offence fell within the mid-range for an offence pursuant to s 61M(1), particularly because of the victim's age and because the conduct involved skin on skin contact, with the offender masturbating the victim's penis. 1. Counts 8, 9, 13 and 14 BR was the victim in each of these counts. The Crown submitted that common features to each of these counts which should be taken into account in assessing the objective seriousness of the offending include: 1. The offender was a friend of BR's parents and got access to him in that way; 2. The offender was trusted by BR's parents to the extent that BR was allowed to stay over for the night at the offender's house; 3. BR's family were struggling financially and it was when BR's father was in hospital suffering from cancer that BR stayed over at the offender's house - each offence involved a significant breach of trust. 4. The offender engaged in significant grooming of BR. This included inviting BR, his brothers and parents to the offender's house, providing gifts and money to BR, telling BR he had started a stock portfolio for BR, taking BR to restaurants and movies, providing swimmers to BR, taking photos of BR in those swimmers, telling BR he could walk around his house naked, and showering naked with BR. 5. The Crown submitted that the fact that BR was under 16 was an element in relation to each count involving BR. However, the degree to which he was under 16 was still a relevant consideration in determining the objective seriousness of each offence. 1. Count 8 This offence took place in 2007 or 2008 when BR was 12 years old. The offence took place in the offender's bed and the offender kissed BR while BR was lying on top of him, as they both thrust towards each other. Following the offence, BR had a rash around his mouth and the offender told him to tell his mother that it was wind burn. The Crown submitted that whilst this offence was below the mid-range of objective seriousness for an offence pursuant to s 61M(1), it was not towards the bottom of the range. What elevated the seriousness was the thrusting of bodies together on the offender's bed while BR was on top of the offender wearing only underwear. Further, BR was 12 years old at the time and the four features outlined above apply. 1. Count 9 This offence took place in 2007 or 2008 when BR was 12 years old. BR was staying over at the offender's home and after showering naked with BR, they watched tv and the offender kissed BR passionately. Immediately after the kissing, the offender masturbated himself (Form 1, Count 10). The Crown submitted that whilst this offence is below the mid-range of objective seriousness, it is not towards the bottom of the range for an offence pursuant to s 61M(1). The Crown submitted that the kissing was for the offender's own sexual gratification, as immediately afterwards he masturbated himself. The surrounding circumstances should also be taken into account, together with the age of BR (12 years) and the four features listed above. 1. Count 13 This offence took place in 2007 or 2008 when BR was 12 years old. After rolling BR on top of himself whilst lying on the offender's bed and thrusting his erect penis against BR's belly button (Form 1, Count 12) and then masturbating himself (Form 1, Count 11), BR began masturbating himself and then the offender started kissing him, and the offender then masturbated BR until BR ejaculated. The Crown submitted the objective seriousness of this offence fell towards the top of the range of objective seriousness. BR was 12 years of age, the act involved skin to skin contact with the offender's hand on BR's penis, rubbing until BR ejaculated. The Crown submitted this was the first time BR ever ejaculated, and the four features outlined above also apply. 1. Count 14 This offence took place in 2009 or 2010 when BR was 14 years old. After taking BR to see a movie, the offender took BR back to his house and onto his bed where he kissed him on the mouth. The Crown submitted this offence is towards the lower end of the range of objective seriousness, but not at the bottom of the range. BR was 14 years old at the time and the offence took place on the offender's bed. The four features listed above also apply. Notwithstanding that the conduct for this offence is not as serious as that for Count 13, the offence carries a higher maximum penalty, namely, 10 years, and a higher Standard Non-Parole Period, namely, 8 years, pursuant to s 61M(2).
In respect of the two Forms 1, each of which contain four offences, the Crown submitted that the seriousness of a number of the offences called for particular emphasis to be given to specific deterrence, the need for retribution and some accumulation in sentence, relying on R v Grube [2005] NSWCCA 140 per Howie J at [5].
The Crown submitted that the pleas of guilty do not demonstrate remorse. They were entered at a very late stage, at a time when the offender was confronted with overwhelming evidence. The Crown submitted the offender had not demonstrated, on the balance of probabilities, remorse as a mitigating factor.
The Crown submitted that the offender had not undertaken any programs to assist with his rehabilitation to date, he had not demonstrated insight into his offending and therefore it was submitted his prospects of rehabilitation are not good.
The Crown further submitted that both general deterrence and specific deterrence had important roles to play in the sentencing exercise here. The offender's criminal history did not entitle him to any leniency.
The Crown submitted that any sentence should be accumulated. The criminality in relation to each of the three victims could not reflect the criminality involved in the other offences. Further, the offences occurred between 1978 and 2010, i.e. for JP between 1978 and 1980, for JE between 1996 and 1997, and for BR between 2007 and 2010. This was not a case where the offences all occurred at around the same time, and thus the sentences should be accumulated. In relation to the four counts where BR was the victim, each count represented a separate incident and separate conduct which occurred over a number of years. Further, the Crown submitted that the offences for which the offender was previously sentenced occurred between August 1980 and November 2003. Hence, the offences involving JP and BR all fell outside that range, thereby extending the offender's period of offending.
In applying the principle of totality, the Crown referred to Porter v R [2019] NSWCCA 117 at [50]. The question to be posed is, "what would likely have been the effect on a head sentence imposed if the offender had been sentenced at the one time [for all of the offending]?"
The Crown submitted that the court would take into account that there were three victims here, which would require a degree of accumulation. Further, had the offender been sentenced for all matters at the one time, the sentences imposed for the offences later in time would have been longer because the offender's correct criminal history would have been known to the sentencing court. Personal deterrence and community protection would have been important factors for the court to take into account, relying on R A Hulme J at [76] - [77].
The Crown submitted that each of the counts which the offender was to be sentenced, except Count 6, is a child sexual offence and therefore, pursuant to s 25AA of the CSPA, the offender must be sentenced in respect of those five offences in accordance with the current sentencing patterns and practices. The Crown noted that the offender was re-sentenced in 2014 by the Court of Criminal Appeal before the introduction of s 25AA. The offender was therefore then sentenced in accordance with the sentencing standards that applied at the time of the offending, relying on Doyle v R [2014] NSWCCA 4 at [454]. The Crown submitted that it was well settled that child sexual offences were dealt with more leniently by the courts many years ago than they are now.
In respect of special circumstances, the Crown submitted that the court was not obliged to vary the statutory ratio, relying on R v Fidow [2004] NSWCCA 172 at [22]; Langbein v R [2013] NSWCCA 88 at [54]. The Crown submitted that the offender's poor prospects of rehabilitation, lack of remorse and the need for protection of society could militate against a finding of special circumstances, relying on R v Windle [2012] NSWCCA 222 at [55].
In a supplementary written outline of submissions, the Crown, having been served with the reports of Dr Ahmed and Dr Rowe, submitted that neither doctor had diagnosed any mental condition or disorder that the offender was suffering from at the time of the offending and thus, there was no causal connection between the offender's mental health and the offending. So much was conceded by learned Queen's Counsel for the offender.
The Crown noted that Dr Ahmed had stated that he believed the offender satisfied the criteria for ASD, but that Dr Rowe had not made any diagnosis in that regard. Further, Dr Rowe did not make a diagnosis of Neuro-cognitive Disorder, rather, he stated the offender's "presentation was largely consistent with that of a Neuro-cognitive Disorder".
The Crown challenged the history provided to each of the doctors, noting that much of it was provided, not by the offender but by his friend, Mr Mark Barbeliuk. Some of that history was in direct conflict with the history provided by the offender, particularly as to his family background. The Crown submitted that limited or no weight should be given to the self-serving statements and hearsay statements made to Dr Ahmed and Dr Rowe, in accordance with the principles summarised by Wilson J in Imbornone v R [2017] NSWCCA 144 at [57].
Finally, the Crown submitted that the offender had expressed no remorse to either doctor and had not demonstrated any insight into his offending.
In his oral submissions, the Crown rehearsed his supplementary submissions as to the conflict between the histories provided to Drs Ahmed and Rowe by Mr Barbeliuk, and the history provided by the offender. The Crown submitted that each of the offences involved one victim only.
In respect of the Victim Impact Statements, the Crown referred to the judgment of Payne J in R v Ruttley (No 7) [2017] NSWSC 1582 at [87], to recognise the harm done to the victim of the crime and the community.
The Crown rehearsed his written submissions as to the objective seriousness of the offending. Count 2 was not an isolated incident and the seriousness was elevated by the victim being 14 or 15 years of age, because age was not an element of the offence. Further, the offender's position of authority and the nature of the conduct meant that this offending should be assessed as objectively serious, at the top of the range.
In respect of Count 6, the Crown submitted that age was not an element of the offence and the victim was 16 years of age. The conduct involved skin on skin contact.
In respect of the four matters on the Form 1 attached to Count 6, the Crown submitted that the objective seriousness of each of the offences were all "in and about the mid-range to low-range". The offending in those offences was not more serious than the index offence in Count 6.
The Crown submitted the offending in Counts 8 and 9 was not at the bottom of the low-range. BR was 12 years of age and therefore well under 16 years of age, which elevated the objective seriousness of the offending.
The Crown rehearsed his submissions in respect of the objective seriousness of the offending in Count 13, being towards the top of the range for the reasons set out above. It was submitted that it would be difficult to think of a more serious offence under s 61M(1). For similar offending, the Court of Criminal Appeal had imposed sentences of 4 years full time imprisonment (see Items 35 and 36 in the schedule in the judgment of Price J at [436]).
The Crown submitted that the matters on the Forms 1 warranted significance to be placed on deterrence and accumulation in sentencing. The offender had offended consistently between 1978 and 2010, and had not demonstrated any insight into his offending, nor was there any hint of remorse for his offending. This would have a significant impact on any assessment of his prospects of rehabilitation. The Crown submitted that the age of the offender would be taken into account, together with the fact that the last of his offending took place 10 years ago. It was noted, however, that he had been in custody for eight of those years.

The offender's submissions

The offender also relied on a detailed written outline of submissions. The offender submitted that, whilst the offender pleaded guilty at a late stage, he was nevertheless entitled to a significant discount for the utilitarian value of the plea, the fact that the plea has demonstrated the offender's remorse and the avoidance of distress to the several victims. Admissions were made in respect of all of the charges and the offender relied on Siganto v R (1998) 194 CLR 656; [1998] HCA 74 at [22]. The offender's plea had avoided a lengthy trial and it was submitted that the court would consider a 15% discount in respect of Count 2, and a 10% discount in respect of the remaining counts on the Indictment.
In assessing the offending as a whole, it was submitted that to assess the objective seriousness of the individual offences, it would be necessary for the court to consider as well the previous convictions and sentences.
The offender submitted that in taking an holistic approach to the assessment of objective seriousness, the court would have regard to some of the aggravating factors pursuant to s 21A(2) as follows: "(2)(d) Although the offender had a record of previous convictions, the chronology of the instant offences overlaps with the previous matters and so reduces the impact of that factor. (2)(f) The offending did not involve gratuitous cruelty. (2)(g) The injury, emotional harm, loss or damage caused by the offending had not been established to have been substantial. It was submitted there was no direct evidence of the effect of the offending on the victims. (2)(k) The offender abused a position of trust or authority in relation to some at least of the victims, in that they were his employees. With respect to BR, the abuse of trust was the trust placed in the offender by BR's family. (2)(l) The victims were not vulnerable beyond the elements of the matters charged, for example, as neither very young nor having a disability. (2)(f) This factor applied as the offence involved multiple victims or a series of criminal acts. (2)(n) Although the offending disclosed a pattern of behaviour and a degree of planning, there was no evidence that the offending was part of any organised criminal activity.
It was conceded by the offender that the age difference between the victims and the offender was a significant factor, relying on R v Nelson [2016] NSWCCA 130.
In assessing the objective seriousness, the actual character of the assault was of considerable significance. The offender submitted that those counts that involved kissing and cuddling had been held to be offending which was "not deeply intrusive", and therefore such offences fell towards the bottom of the range, relying on Corby v R [2010] NSWCCA 146 at [72], [78] and [81]. The age of the child at each offence, and the duration of the conduct and use of coercion, were relevant matters to the assessment of objective seriousness.
The offender submitted in relation to Count 2 that the act of fellatio should be considered a serious example of an indecent assault on a male. The difference in age between the victim and the offender, the nature of the assault and the fact that it involved intrusive contact with the victim's genitalia, whilst the offender was in a position of authority, did not assist the offender. Nevertheless, the offender submitted that as the indecent assault "didn't last very long" and it did not involve an act of cruelty, nor was the result of threats rendered by the offender, it was therefore submitted that the offending fell below or near the mid-range of seriousness.
The offender submitted that Counts 1, 3, 4 and 5, which were on the Form 1 attached to Count 6, would have either a moderate (Count 1) or marginal (Count 5), or very marginal effect on the sentence for Count 6 (Counts 3 and 4).
In respect of Count 6, the offender conceded that putting his hands down the pants of JE, unzipping his pants and masturbating JE, was a serious example of an indecent assault, however, it was submitted the duration of the act was short and thus the offending would fall below the mid-range of seriousness.
The offender submitted that Counts 7 and 8 arose from the same incident. In respect of Count 7 (on the Form 1 for Count 13), the objective seriousness was between low-range and mid-range and therefore the impact on sentence for Count 13 would be very marginal. Count 8 was a more serious example of the offence pursuant to s 61M(1), but would still fall below the mid-range of objective seriousness for such an offence.
In respect of Count 9, the offender submitted that the act of kissing BR on the mouth passionately would place the offence between the low-range and mid‑range of objective seriousness for an offence pursuant to s 61M(1).
Count 10, the offence of commit act of indecency pursuant to s 61M(1) of the Crimes Act 1900, fell between the low-range and mid-range of objective seriousness for this type of offending, and it was submitted, would have a marginal impact on the sentence for Count 13.
Counts 11 and 12 were also on the Form 1 attached to Count 13. The three counts arose from the same incident. It was submitted that the act of the offender kissing BR while thrusting his erect penis against BR's penis in Count 11, fell towards the mid-range of objective seriousness and the effect that that had on the sentence for Count 13 would be moderate. With respect to Count 12, the act of the offender masturbating himself in the presence of BR also fell towards the mid-range of objective seriousness and it was submitted that the impact that would have on the sentence for Count 13 would be marginal.
The offender conceded that the offending with respect to Count 13 was a serious example of an aggravated indecent assault. The act of masturbating a child to ejaculation, while kissing the child, was intrusive and would fall towards the mid-range of objective seriousness for an offence pursuant to s 61M(1).
The offender submitted that the offender's age, namely 77 years, having been born in January 1943, was a relevant subjective consideration on sentence. It was submitted that his age may entitle the offender to some discount on sentence, together with health problems which may limit the offender's life expectancy.
In assessing the offender's risk of re-offending, the offender submitted that the court give particular consideration to the offender's age. The court should also have regard to the subjective circumstances taken into account by the sentencing judge in 2012, namely, that the offences were not offences of violence, the offender did not employ threats, and the offender had been, over a number of years, actively philanthropic in his local area. The sentencing judge went on to find that, on the balance of probabilities, it was unlikely that the offender will commit further offences, but qualified this by saying: "But this is a guarded observation since his misconduct has been persistent over decades."
Learned Queen's Counsel for the offender submitted that the court should take into account the impact of the COVID-19 pandemic, creating onerous custodial conditions, particularly having regard to the offender's age and vulnerability. Further, it was well recognised that each year in protective custody is equivalent to a longer loss of liberty than under the ordinary conditions of imprisonment.
The offender submitted that the principle of totality was important, first, in relation to the imposition of a sentence that fairly deals with the six index offences, and secondly, the structuring of the sentence when the court has regard to the previous matters for which the offender is currently serving a sentence. It was submitted that it should not be in dispute that the offender has been in custody since 4 January 2019 as a result of the instant charges. He has therefore spent close to two years in custody referrable to these matters. The written outline thereafter set out well known authorities relating to principles of totality, including Mill v R (1988) 166 CLR 59; [1988] HCA 70 at [66]. It was submitted that when the criminality of the offending the subject of these proceedings was considered along with the criminality of the 38 convictions from 2012, it is unlikely that the totality of the offending would have called for a head sentence exceeding 11 years. Accordingly, if the head sentence attracted the non-parole period similar to that imposed by the Court of Criminal Appeal, it is unlikely that the total non-parole period would have exceeded eight years. It was submitted further that that analysis needed to be tempered to reflect a different subjective case, given that the offender had entered pleas of guilty and accepted responsibility for all of the current offending, he accepted responsibility for his actions, he was considerably older than when previously sentenced, and the prison conditions are now far more onerous than what was envisaged during the 2012 sentencing proceedings.
It was submitted that the imposition of a sentence that would see the offender immediately eligible for parole would adequately reflect the criminality of all of his offences.
In a supplementary submission on sentence regarding the reports of Drs Ahmed and Rowe, together with the records of Justice Health, those records included notes regarding physical assaults suffered by the offender in custody, which was characterised by Dr Rowe as a "particularly negative experience", leading to a Major Depressive Disorder and latterly a Neuro‑cognitive Disorder.
Dr Rowe had assessed the offender as a low risk of sexual recidivism and opined that: "His potential danger to the general community upon his release is now most likely very low."
It was noted that Dr Ahmed described the offender as "quite confused and a little combative", and as physically "relative frail". Dr Ahmed was of the opinion that the offender satisfied the criteria for ASD as well as "some kind of early dementia". Dr Ahmed had concluded that: "It is extremely unlikely that he could be a threat in any form to others."
Following neuro-psychological testing, Dr Rowe opined that the offender suffered an early form of dementia and LBD and NCD. This was consistent with the notes produced by Justice Health which included "onset of dementia" in September 2020. Dr Rowe had noted that the ultimate prognosis for NCDLB was poor, an average period of survival being for two to eight years, with factors such as depression "potentially accelerating their decline".
The written outline also submitted that the medical material now provided an explanation for the offender's conduct, in that Dr Rowe considers that the offender suffers from hebephilia. This provided an insight into the offending and the improbability of further criminality, given the offender's age and condition. Dr Rowe had described the offender as having "limited time left".
It was submitted that the offender's potential danger to the general community upon release was now likely very low and would be capable of further reduction by his potential access to treatment.
It was submitted that the offender's diagnoses demonstrated a deteriorating psychiatric and physical condition that would operate to make any additional custody especially onerous. The nature of his present physical and mental conditions rendered punishment futile and his overall frailty meant that there was no community interest or issue of the protection of minors from his future conduct. Further, the issue of general deterrence was obviated. It was submitted there was a community interest in the exercise of a merciful rather than entirely punitive sentence in the circumstances.
In his oral submissions, learned Queen's Counsel for the offender rehearsed his submissions as to the utilitarian discount. He acknowledged the legislative provisions upon which the Crown's submissions were based.
With respect to the assessment of objective seriousness of the offending, the offender submitted that there was not a great difference between the offender's position and that of the Crown. Any difference did not really affect the overall submission made on behalf of the offender, namely, that following a global assessment, and applying the principle of totality, any sentence should be significantly moderated so as not to produce a justifiable sense of grievance in the offender. He had been 10 years without offending and had these offences been dealt with at the same time as the 2012 sentence, the principle of totality would have been applied.
It was submitted that there were two dominating factors to be found in the offender's subjective case. First, the doctors' opinions meant that he will be 78 years of age upon sentence and in failing health, both cognitively and physically. It will be in accordance with community expectation that the court would give credence to, and full weight to, his plea for mercy, given he had limited time left.
It was submitted that whilst there was no causal nexus between his mental health and the offending, there was a nexus between his mental health and age, and his failing cognition, which meant he was unable to express remorse. The medical opinions relied on by the offender were therefore important to be taken into account, whether or not the history relied on was that provided by Mr Barbeliuk.
Learned Queen's Counsel rehearsed his submissions in respect of the following factors to be taken into account. First, there was now an explanation not previously available for the offender's conduct, which goes to the assessment of the objective seriousness of the offending. Secondly, the offender has a deteriorating psychological condition. Thirdly, the effect of additional time in custody will be especially onerous for him. This is complicated by the fact that he will have limited access to treatment, rehabilitation or maintenance of his current cognitive condition. The lack of resources of Justice Health were a matter about which the court would take judicial notice.
Finally, given his physical disabilities and mental health issues, deterrence is futile in his case and there is no community interest in further punishment. This meant that general and specific deterrence were of lesser importance in the sentencing process.
Finally, it was submitted that the court could express through its sentencing, compassion for the offender and for his circumstances.
In response to the Crown supplementary submissions, it was submitted that there were two significant differences to be taken into account. First, here, the opinions expressed by the medical experts were not based on self‑serving statements. Rather, the history was provided by two sources, namely, the offender and Mr Barbeliuk. This narrative history of the offender enabled those two doctors to determine his present condition, past triggers and underlying capacities. This was unlike the case in a pre-sentence report, where the author relied on histories provided by the offender only. Here, the two doctors had independently arrived at the same opinion of ASD. Further, neuro-psychological testing had demonstrated the offender's deficits objectively, consistent with the history provided by the offender. The court would accept that the histories were not determinative of the opinions ultimately expressed by the doctors and it was therefore appropriate for the court to rely on the medical material.

Determination

Section 3A of the C(SP)A 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."
Count 2 involved the offender fellating JP at a time when he was 14 or 15 years old until he ejaculated, and then the offender swallowed it. Age is not an element of the offence pursuant to s 81 of the Crimes Act and thus the young age of the victim elevated the seriousness of the offending. The act was followed by urging by the offender, or a threat to JP, not to tell anyone. I find the objective seriousness of the offending fell within the mid-range for an offence pursuant to s 81 of the Crimes Act.
Count 6 involved the offender masturbating JE when he was 16 years old. JE was his employee and the offending occurred at his place of employment. This involved a significant breach of trust and abuse of the offender's position of authority, however, it was an element of the offence that he was under the offender's authority. The offending involved skin on skin contact with the offender using one hand to masturbate JE's penis until he stopped and told JE to put his penis away. The objective seriousness of the offending fell just below the mid-range for an offence pursuant to s 61M(1) of the Crimes Act and towards the upper part of the low-range. It still constituted serious offending.
I accept the Crown's submission that there were a number of common features to each of Counts 8, 9, 13 and 14, which should be taken into account in assessing the objective seriousness of those offences. The offender had engaged in significant grooming of BR at a time when BR's family was struggling financially and BR's father was in hospital suffering from cancer. This led to the offender being trusted by BR's parents, who allowed BR to stay overnight at the offender's house. Also, the degree to which BR was under the age of 16 was a relevant consideration in determining the objective seriousness of each of the offences, as it was an element of the offence.
Count 8 involved an incident when BR was 12 years of age and took place in the offender's bed. The offender kissed BR whilst BR was lying on top of him, as they both thrust towards each other. BR was wearing only underwear at the time. The objective seriousness of this offence fell below the mid-range and in the middle of the low-range for an offence pursuant to s 61M(1) of the Crimes Act.
Count 9 also occurred when BR was 12 years of age. He was staying overnight at the offender's home and the offender watched him have a shower. The offender then got into the shower naked with BR, following which they both dried themselves, put on underwear and got onto the offender's bed. They were watching tv and the offender started to kiss BR on the mouth passionately. The kissing was for the offender's own sexual gratification, as he immediately thereafter masturbated himself. The objective seriousness of this offence fell below the mid-range and in the upper part of the low-range for an offence pursuant to s 61M(1) of the Crimes Act.
Count 13 also took place when BR was 12 years of age. It involved BR masturbating himself and then the offender kissing him, and the offender then masturbating BR until he ejaculated. The offending involved skin on skin contact, with the offender's hand on BR's penis, and having regard to BR's young age, it fell within the mid-range for an offence pursuant to s 61M(1) of the Crimes Act, but at the bottom of the mid-range.
Count 14 took place when BR was 14 years of age. On this occasion, after BR was taken to see a movie, he returned to the offender's house and was taken to the offender's bed where the offender kissed BR on the mouth. The objective seriousness of the offending fell in the low-range for an offence pursuant to s 61M(2) of the Crimes Act, and towards the middle of the low‑range.
In arriving at the assessments of objective seriousness of each of the offences, I have also taken into account the age difference between the victims and the offender, who was born in January 1943. At the time of the offending in Count 2, he was between 35 and 37 years of age. At the time of the offending in Count 6, he was 54 years of age, and at the time of the offending in Counts 8, 9, 13 and 14, he was between 64 and 67 years of age. There was therefore a significant difference in age between the offender and each of the victims. JP was 14 or 15 years (Count 2), JE was 16 years (Count 6) and BR was aged between 12 and 14 at the time of the offences. In respect of the offences on the Form 1 attached to Count 6, I find that Counts 1 and 2 were at the lower end of the range of objective seriousness for offences pursuant to s 81 of the Crimes Act, and Counts 4 and 5 also fell at the lower end of the range of objective seriousness for offences pursuant to s 61M(1) of the Crimes Act.
Similarly, in relation to the matters on the Form 1 attached to Count 13, each of Counts 7 and 11 fell in the lower range of objective seriousness for offences pursuant to s 61M(1) of the Crimes Act, and each of Counts 10 and 12 fell at the lower end of the range of objective seriousness for offences pursuant to s 61N(1) of the Crimes Act.
I find that the following aggravating factors are to be taken into account pursuant to s 21A(2) of the CSPA: (d) The offender had a record of previous convictions for similar matters for which he was sentenced in 2012. (eb) The offence was committed in the offender's home. (g) The injury, emotional harm, loss or damage caused by the offences was substantial. I refer to the Victim Impact Statements below, and I reject the submission made on behalf of the offender that substantial harm has not been established and that there was no direct evidence of the effect of the offending on the victims. (k) The offender's abuse, in respect of Count 2, involved a significant breach of trust and the abuse of the offender's position of authority as the employer of JP. I have not double-counted this abuse in respect of those offences where being in a position of authority was an element of the offence (Count 6). I note with respect to the offences involving BR (Counts 8, 9, 13 and 14), the breach of trust was the trust placed in the offender by BR's family. (m) The offending involved multiple victims and a series of criminal acts.
I further take into account the following mitigating factors pursuant to s 21A(3) of the CSPA: (b) The offence was not part of a planned or organised criminal activity.
The offender entered his pleas of guilty on 30 September 2020 after preliminary legal argument had taken place, but before judgment and before any evidence had been called at trial in the Crown case. I therefore find he is entitled to a 5% utilitarian discount on sentence pursuant to s 25D(3) of the CSPA in respect of Count 2, and pursuant to s 25D(2)(c) in respect of Counts 6, 8, 9, 13 and 14.
I accept that the offender's plea of guilty involves some remorse on his part, however, I accept the Crown's submission that the offender has expressed no remorse to either Dr Ahmed or Dr Rowe, and had not demonstrated any insight into his offending, possibly due to the onset of his neuro-cognitive disorder.
Nor am I satisfied that the offender has good prospects of rehabilitation. Rather, as a result of his deteriorating mental health, the onset of dementia and the impact of his depression potentially accelerating his cognitive decline, together with his age and period of time in custody, I find that this offender will be a low risk of re-offending upon his release to the community.
Dr Rowe's diagnosis of the offender suffering from hebephilia provides an insight into the offending, together with the previous offending for which he was sentenced in 2012. There is, however, no causal nexus between any of the diagnoses of early dementia, LBD or NCD to the index offending. Rather, those diagnoses and his deteriorating psychiatric and physical state diminish the importance of general deterrence in the sentencing process. I do not accept the submission made on behalf of the offender that there is no community interest in a punitive sentence, or that the issue of general deterrence is "obviated". The authorities make clear that general deterrence is important in sentencing for child sexual offending and a clear message must be sent to like‑minded members of the community that Parliament has proscribed severe sentences for such offences and that the courts will impose condign punishment in appropriate cases.
I accept that specific deterrence has little role to play in the sentencing process here, given the fact that the offender has already spent eight years in custody for similar offences, that his psychological and physical health has deteriorated, and at 78 years of age his life expectancy has been seriously impacted by the onset of the diagnoses referred to.
I accept the submission made on behalf of the offender that his mental health diagnoses will make any additional time in custody especially onerous for him, particularly as he may have limited access to treatment for maintenance of his current cognitive condition. I also take into account the more onerous conditions of custody as a result of the Covid-19 pandemic, because of the steps taken by Corrective Service to minimise the risk to inmates which has significant negative impacts on their wellbeing - see Valentine v R [2020] NSWCCA 116 at [60] and [61]. These adverse conditions include the prospect of spending periods of time in confinement, lack of access to the opportunities for courses available to mainstream prisoners, and the lack of opportunity to receive prison visitors. These conditions apply to all of those in the prison population, for reasons of safety for the whole of that population, however, I do note they have been recently eased, with greater visitation access compared to earlier in the pandemic.
The subjective features relied on by the offender, leaving aside his age and mental health issues, do not carry great weight in the sentencing process. The matters taken into account by the sentencing judge in 2012, for example, the fact that he had been actively philanthropic in his local area prior to his arrest, were very much qualified by the sentencing judge noting that his misconduct had been persistent over decades. The fact that the index offences occurred during or around the same period of time further detracts from the weight to be given to the subjective features of the offending. Even if such subjective considerations were considered significant, they should not be allowed to cause inadequate weight to be given to the objective circumstances of the particular case - see Kearsley v R [2017] NSWCCA 28 per Macfarlan JA at [14].
The Victim Impact Statements provided to the court by the three victims were stark examples of the substantial and enduring psychological and physical impact that child sexual offending has on victims.
As set out above, I reject the submission made on behalf of the offender that there was no evidence of significant harm caused to the victims. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, the Court of Criminal Appeal said at [110]: "This court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G (2008) UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R (2011) VSCA 157; 32 VR 361."
I have therefore taken the substantial harm caused to each of the three victims into account. They are also relevant to the consideration by the court of the offender's plea for mercy. In Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54, Kirby J said at [68]: "Each case must be judged on its own facts. The adoption of a blanket rule would itself be an error of sentencing principles. A discretion must be left to permit those with the responsibility of sentencing to take into account the peculiar circumstances of the case, any exceptional circumstances affecting the prisoner and in some cases the prisoner's family, or some feature of the matter that reasonably arouses a judicial decision that a measure of mercy is called for in the particular case."
Thus, there are cases where an offender's age, ill health, remorse and low level of offending may lead to the exercise of mercy in the sentencing process. However, the circumstances of this case, given the serious nature of the offending, the period of time over which the offending occurred, and the need for principles of totality and proportionality to be applied to the sentence previously imposed on the offender for similar offences which occurred at or about the same period of time, together with the substantial impact on the victims of the crimes, means that the discretion as to mercy advocated on behalf of the offender, to the effect of resulting in his immediate release, would be an abrogation of the court's duty to apply the principles of sentencing, including denunciation and retribution. However, the offender's circumstances are relevant to whether a finding of special circumstances pursuant to s 44(2) of the CSPA (so as to vary the statutory ratio between head sentence and non‑parole period), should be made.
Relevant to the sentencing process is s 25AA, which was introduced into the CSPA on 31 August 2018. It provides as follows: "(1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, and not at the time of the offence. (2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing. (3) When sentencing an offender for a child sexual offence, the court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts). (4) This section does not affect s 19. (5) In this section: 'Child sexual offence' means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years: (a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900, (b) an offence under a provision of that Act set out in column 1 of Schedule 1A to that Act, (c) an offence of attempting to commit any offence referred to in paragraphs (a) or (b), (d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a) - (c).'"
Pursuant to s 25AA, when sentencing for historical child sex offences, there is no need to consider the past pattern of sentences. Rather, the maximum penalty applicable at the time of the offending for Count 2 of 5 years imprisonment and no Standard Non-Parole Period, the maximum penalty for Counts 6, 8, 9 and 13 of 7 years imprisonment with a Standard Non-Parole Period of 5 years imprisonment and the maximum penalty proscribed for Count 14 of 10 years imprisonment, with a Standard Non-Parole Period of 8 years imprisonment, are relevant as guideposts in the sentencing process and I am to disregard any increase in the maximum penalties for the offences as they currently appear in the Crimes Act 1900. I am then to assess the objective seriousness of the offending conduct, taking into account all of the relevant circumstances, and then have regard to any aggravating or mitigating factors. I note, however, that s 25AA does not apply to Count 6 as it is not a "child sexual offence", as JE was 16 years of age at the time of that offence.
I intend to impose an aggregate sentence pursuant to s 53A of the CSPA. For purposes of transparency in the sentencing process, I must provide indicative sentences for each of the index offences, taking into account the objective seriousness of the offences as I have found them, the aggravating and mitigating features to be taken into account, the 5% utilitarian discount on sentence, together with the diminished impact of general deterrence and the offender's subjective features, including his mental health diagnoses and deteriorating psychological and physical health. I have also taken into account the matters on the Forms 1 attached to Counts 6 and 13, which must lead to some accumulation on sentence for those counts. The indicative sentences are as follows: Count 2 (ex officio) - indecent assault on (JP), offence pursuant to s 81 of the Crimes Act 1900 - 2 years and 6 months imprisonment Count 6 - aggravated indecent assault, child under authority (JE), pursuant to s 61M(1) of the Crimes Act 1900 - 4 years imprisonment, and non‑parole period of 2 years imprisonment. Count 8 - aggravated indecent assault, child under 16 years (BR), pursuant to s 61M(1) of the Crimes Act 1900 - 2 years imprisonment, and a non‑parole period of 1 year imprisonment. Count 9 - aggravated indecent assault, child under 16 years (BR), pursuant to s 61M(1) of the Crimes Act 1900 - 2 years and 6 months imprisonment, and a non-parole period of 1 year and 3 months imprisonment. Count 13 - aggravated indecent assault, child under 16 years (BR), pursuant to s 61M(1) of the Crimes Act 1900 - 5 years imprisonment, and a non‑parole period of 2 years and 6 months imprisonment. Count 14 - aggravated indecent assault, child under 16 years (BR), pursuant to s 61M(2) of the Crimes Act 1900 - 2 years imprisonment, and a non‑parole period of 1 year imprisonment.
In assessing the aggregate sentence, I take into account principles of proportionality and totality in sentencing. The principle of totality was explained by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
In applying principles of proportionality and totality in sentencing here, I must have regard to the sentence imposed on the offender upon re-sentence by the Court of Criminal Appeal in Doyle v R; R v Doyle [2014] NSWCCA 4, to an overall term of 9 years and a non-parole period of 6 years and 6 months, together with the finding of special circumstances made by the sentencing judge and confirmed by the Court of Criminal Appeal. That sentence was imposed in respect of 38 offences of a similar type, perpetrated on five victims between 1980 and 2003. Thus, Count 2, the offence in which JP was the victim, occurred prior to the offending for which the offender was then sentenced, and Counts 8, 9, 13 and 14, involving BR, occurred after those previous offences, thus, there must be some accumulation between Counts 2, 6 and the counts involving BR (Counts 8, 9, 13 and 14). There must also be some accumulation on the previous sentence imposed on the offender in 2012 reflecting both the extension of the period over which the offender offended, and the fact that s 25AA applies to his sentencing on Counts 2, 8, 9, 13 and 14. The application of current sentencing practice complicates the application of the principle of totality to sentencing here, given the question posed, pursuant to Porter v R, supra: "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?"
I accept the Crown's submission that had the offender been sentenced for all matters at one time, the sentences imposed for the offences later in time would have been longer because the offender's correct criminal history would have been known to the sentencing court. Further, the offender had been re‑sentenced in 2014 before the introduction of s 25AA, at a time when sentencing for historical child sexual offences were dealt with more leniently than they are now. In addition, it is likely that the offender would have received a longer sentence in respect of the offences committed last in time, namely on BR. General deterrence and protection of the community would have been very significant factors in the assessment of the earlier sentence.
The impact of delay in sentencing is also relevant to the application of the principle of totality. The impact of delay in sentencing was explained by the Court of Criminal Appeal in Porter v R, supra, at [68] - [77] per R A Hulme J (with whom Hoeben CJ at CL and Davies J agreed). This case is not an example of delay in sentencing for reasons beyond the control of the offender, but rather, the delay has been largely attributable to the offender avoiding detection for his crimes for many years until the victims made a disclosure and police investigation ensued. The consequence of such delay is of reduced significance in the assessment of sentence - see Porter v R at [70].
Here, given the number of offences and the period of time over which the offending took place, there must be some accumulation in the sentence to be imposed, in addition to the sentence currently being served. Having regard to the totality of the criminality involved, an appropriate aggregate sentence is a term of imprisonment of 6 years and 6 months.
I make a finding of special circumstances pursuant to s 44(2) of the CSPA, based on the previous finding of special circumstances as confirmed by the Court of Criminal Appeal, the offender's recent diagnoses of LBD and NCD, his development of a Major Depressive Disorder and his deteriorating psychological and physical health, I therefore intend to impose a non-parole period of 4 years to reflect the shortest period of time to be served in respect of the offender's criminal conduct.
I intend to set a commencement date for the sentence of 4 July 2018. The offender will therefore become eligible for parole on 3 July 2022. The balance of term will be a period of 2 years and 6 months, expiring on 3 January 2025.

Orders

I hereby make the following orders: 1. You are convicted of the following offences: Count 2 (ex officio) - between 8 August 1978 and 7 August 1980, indecent assault on male JP, pursuant to s 81 of the Crimes Act 1900. Count 6 - between 28 January 1997 and 31 December 1997, aggravated indecent assault on JE, a child under authority, pursuant to s 61M(1) of the Crimes Act 1900. Count 8 - between 1 July 2007 and 22 March 2008, aggravated indecent assault on BR, a child under 16 years, pursuant to s 61M(1) of the Crimes Act 1900. Count 9 - between 1 September 2007 and 22 March 2008, aggravated indecent assault on BR, a child under 16 years, pursuant to s 61M(1) of the Crimes Act 1900. Count 13 - between 1 September 2007 and 22 March 2008, aggravated indecent assault on BR, a child under 16 years, pursuant to s 61M(1) of the Crimes Act 1900. Count 14 - between 7 July 2009 and 22 March 2010, aggravated indecent assault on BR, a child under 16 years, pursuant to s 61M(2) of the Crimes Act 1900. 1. I sentence you to an aggregate sentence of 6 years and 6 months, with a non-parole period of 4 years commencing on 4 July 2018 and terminating on 3 July 2022. 2. The balance of term will be a period of 2 years and 6 months commencing on 4 July 2022 and terminating on 3 January 2025.
I have certified that I have taken each of the four matters on each of the Forms 1 in relation to Counts 6 and 13 respectively into account on sentence.
I further order that the suppression order made on 11 May 2020 in respect of the offender be vacated.

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 February 2021

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