R v Jacobs

Judgment The offender has pleaded guilty to eleven charges. They are: 1Between 1 January and 31 December 1977 at Young in the State of New South Wales he did commit an indecent assault upon PB, a male. That is pursuant to s 81 of the Crimes Act and carries a maximum penalty of five years imprisonment, as do all of these charges brought pursuant to s 81. 2Between 1 January and 31 December 1979 at St Ives in the State of New South Wales he did commit an indecent assault upon WG, a male; again pursuant to s 81. 3Between 1 January and 31 December 1980 at Sydney in the State of New South Wales he did commit an indecent assault upon WG, a male person; again pursuant to s 81. 4Between 1 January and 31 December 1977 at Sydney in the State of New South Wales he did commit an indecent assault upon SL, a male person; again pursuant to s 81. 5Between 1 January 1978 and 31 December 1980 at St Ives in the State of New South Wales he did commit an act of buggery with SL. That carries a maximum penalty pursuant to s 79 of the Crimes Act of fourteen years imprisonment. 6Between 1 January 1983 and 1 November 1983 at Pymble in the State of New South Wales he did commit an indecent assault upon RB, a male person. That is charged pursuant to s 81. 7Between 1 June 1983 and 31 December 1983 at Pymble in the State of New South Wales he did commit an indecent assault upon RB, a male person, again pursuant to s 81. 8Between 1 January 1981 and 31 December 1982 at St Ives in the State of New South Wales he did commit an indecent assault upon IF, a male person, pursuant to s 81. 9Between 1 January 1981 and 31 December 1982 at St Ives in the State of New South Wales he did commit an act of buggery with DF pursuant to s 79 of the Crimes Act which carries a maximum penalty of fourteen years imprisonment. 10Between 1 January 1981 and 31 December 1982 at St Ives in the State of New South Wales he did commit an indecent assault upon DF, a male person, pursuant to s 81. 11Between 1 January 1981 and 31 December 1982 at St Ives in the State of New South Wales he did commit an act of buggery with DF, and it is brought pursuant to s 79 of the Crimes Act and carries a maximum penalty of fourteen years imprisonment. 12The offender has pleaded guilty to each charge. The facts which are agreed are these. In 1974 the victim, PB, born on 27 June 1966, joined the St Ives branch of the Church of England Boys Society. At that time the offender, then aged twentytwo years, who was born on 22 June 1952, was one of the leaders in this society. The offender became a close friend of the victim's family and for a period of approximately four years from 1977 to 1980 he committed various criminal sexual acts upon the victim. 13Charge number one. In May 1977 the offender accompanied the victim, who was then ten years of age, and the victim's family to Young for the purpose of attending a wedding. During the visit the offender and the victim stayed in the same hotel room. During the night of 7 May 1977 the offender invited the victim into his bed and then masturbated him. 14Victim number two, WG. The victim WG, born on 28 September 1968, resided with his family in the family home at Pymble. The victim's father, together with the victim's eldest brother, left the family home in 1979. The victim remained with his mother at the family home until 1987. The victim joined the Church of England Boys Society at Christ Church St Ives in 1979 when he was ten years old. This group is similar to Scouts and is for young males. Group meetings were held at the church on Friday nights. At the time one of the leaders was the offender, then aged twentyseven years, he assisted in conducting group activities. They conducted a number of camps out of Sydney, the offender attended such camps. The victim attended a number of those camps where the offender was present. The victim's mother fully trusted the offender as he was a leader in the church group. 15Charge number two. The victim joined the group in 1979, he was ten years of age. During 1979 Friday night games were conducted in the main hall of the church. I will not go into full details of all the facts, they are exhibited with the papers. On one occasion in 1979 when the victim was either ten or eleven years, the offender took him downstairs to the toilets while the others were playing a game. They entered the toilet area, there was no one else present. The offender walked the victim, who was wearing his uniform, into a cubicle and closed the door behind them. The offender picked the victim up and stood him so that he was standing on the front of the toilet seat. The victim had his back to the offender who was standing behind him. The victim was wearing his uniform at the time, the shorts had an elastic waist. The offender was also wearing a uniform. The offender pulled down the victim's shorts and underwear so that the victim was naked from the waist down. The offender grabbed the victim's penis with one hand and held it while the victim urinated into the toilet bowl. After the victim finished going to the toilet the offender pulled the victim's pants up and then picked him up and turned him around. While he was still holding the victim in the air he kissed him. He then placed his tongue inside the victim's mouth, this lasted for about thirty seconds to a minute. The victim could not breathe well while this was occurring. The offender then carried the victim out of the toilet and put him down and they both went upstairs. 16Charge number three. On a night after October 1979 when the victim, WG, was eleven years of age he and his stepbrother were being babysat by the offender at the offender's parents' home in St Ives. The offender leaned over to the victim and started to kiss him on the lips, he put his tongue inside the victim's mouth. While he was doing this the offender removed the blankets and pulled down the victim's pyjama pants and underpants. The offender grabbed the victim's penis and masturbated the victim by moving his hand up and down the victim's penis. After a short time the offender stopped kissing the victim on the lips, he then placed his mouth on the victim's erect penis and moved his mouth up and down it for about two minutes. The victim could see that the offender had no pants on and that he was masturbating himself. The victim then returned to bed and went to sleep. 17The victim SL. SL was born on 15 October 1966. At the time he was living with his family at St Ives and joined the group, the Church of England Boys Society at Christ Church St Ives, at the beginning of 1977 when he was ten years of age. The offender was twentyfive years of age at that time. The victim's parents got to know the offender and came to have total trust in him. The offender used to assist the victim with his homework in the bedroom area of the victim's family home. He also babysat the victim and his sister. The offender bought expensive gifts for the victim, and the offender would attend various camps. They were intended to be father and son camps but the victim's adoptive father had been in an accident which left him disabled, he was unable to attend such camps. The offender went with the victim to such camps on at least three occasions. On one occasion the victim and the offender went bushwalking. They walked along a track, the offender told the victim to take his clothes off, the victim did so. The offender then took a number of photographs of the victim naked. These photographs comprised close-ups and full body shots. On one occasion the offender showed the victim some slides in a light box, they were images of the victim that the offender had taken when they had gone on the bushwalk. In 1980 when the victim was growing older and started to show signs of puberty the offender began to shave the victim's genitals and legs and trim his eye lashes. 18Charge number four, this is a representative count, the offence occurred almost every time the offender drove the victim home and at least twice each month through 1977. In early 1977 when the victim was ten years old the offender drove him home and he let the victim sit on his knee and steer the car. He placed his hand inside the victim's pants, sometimes removing the victim's penis from his pants, he fondled and masturbated him. Usually this activity caused the victim to have an erection. 19Charge number five, this is a representative offence. The victim began to attend Sunday school when he was aged eleven, he often stayed overnight at the offender's home. When he stayed overnight the offender would rub the victim's penis and fondle him. This led to the offender putting the victim's penis into his mouth and masturbating him until the victim ejaculated. The offence of buggery began after the first three or four times the victim had stayed at the offender's house. It occurred about twenty times a year from the beginning of 1978 until the end of 1980. When the victim slept at the offender's home they usually went to bed at the same time. After the victim had fallen asleep he would be awakened by the offender who was rubbing his penis against the victim's bottom and bottom cheeks. He then placed lubricant on to his penis and inserted his penis into the victim's anus. The offender slid his penis in and out of the victim's anus until he ejaculated. The victim then went to the toilet and felt a substance coming from his anus which he came to realise was semen. On one occasion the victim queried the offender about the activities as to whether they were permissible as in his bible studies he had read that a man and another man should not have sex together. The offender told him that it was permissible because they were not making babies. 20The next victim was RB who was born on 22 February 1972. He and his family regularly attended the church. When he was eleven he joined the boys group and he met the offender. The victim and his parents grew to know, like and trust the offender. They often allowed the victim to go to places with the offender and be alone, including at the offender's home. The offender would buy presents for the victim and he paid more attention to the victim than to the other boys. He took photographs of the victim in a state of undress. 21Charge number six. In 1983 the victim was eleven years old, he went on a camp. The offender took the victim back to the tent area, he and the victim were alone at the time and the offender told him to brush the sand off himself, they then entered the tent. He told the victim to remove his clothing so that he could get the sand off him, the victim removed his clothing. The offender started to brush the sand off the upper naked body of the victim, working his way down the victim's body until he got to his swimming costume, he removed the swimming costume leaving the victim completely naked. At this stage the victim felt uncomfortable and worried. The offender started to masturbate the victim by putting the victim's penis in between his hands and pulling it, this lasted for some time. The victim did not obtain an erection. The offender constantly reassured the victim that this was normal. The victim felt confused. 22Charge number seven. Towards the end of 1983 the victim was taken to the offender's home. The offender took the victim into the bedroom and asked him to remove his clothes. The victim was naked, he sat on the bed. The offender sat on the bed next to him and commenced to masturbate him. The victim obtained an erection and while this was happening the victim did not ejaculate and the offender masturbated him for about a minute or so. After he stopped masturbating the victim he asked him to lay on the bed and pose in different positions. The victim was naked at the time, the offender took a number of photographs of the victim using a Polaroid camera. He told the victim to touch his own penis and the offender kissed the victim. During these activities the victim felt vulnerable and confused. The offender would constantly tell him that it was okay, that there was nothing wrong, that he was a special boy. The victim trusted the offender and believed him. 23Charge number eight. The victim IF, who was aged about fourteen to fifteen years at the time. At one occasion the victim stayed overnight in the home of the offender's parents and during the night the offender masturbated the victim. 24Charge number nine. The victim DF, he was then twelve to thirteen years of age, he also attended the church and the Boys Society. His mother used to take her sons to the home of the offender's parents so they could play table tennis and videogames. Some time between 1981 and 82 when the victim was twelve or thirteen years of age he visited the offender's home. The offender pulled down the victim's pants and had anal intercourse with him. He ejaculated, he did so against the victim's buttocks and used his handkerchief to wipe the semen away. 25Charge number ten. On another occasion the victim was staying at the offender's home, the offender masturbated the victim both manually and orally. The victim was lying on the bed and gained an erection. 26Charge number eleven. Later that evening the offender climbed into bed with the victim and had anal intercourse with him, ejaculating against the cheeks of the buttocks of the victim, and he wiped the semen away with his handkerchief. 27Those are the facts upon which I sentence the offender. 28I was provided with, and had read in Court, four victim impact statements, one of PB where he set out a lengthy history of how he said he was affected by what had happened to him. He said the abuse had affected every part of his life, his relationship with his mother became strained, he has few friends, he is not capable of a normal committed relationship, and he believed the only way out is suicide. 29The next one was WG who said in 2003 he was experiencing panic attacks and severe mood swings, was under regular medication. He said he has been affected in relationships, particularly with girlfriends, he has nightmares, grinds his teeth, experiences mood swings. It has been heartbreaking for his mother. He said: "I have not coped well as a victim and would love to be able to put the past behind me and face the future more positively. I need to gain control of my emotions and accept the need for ongoing support and counselling." 30SL said: "I have spent the last twenty years or so trying to deal with what happened to me as a child. As a younger teenager I dealt with taunts from other kids and had ideas that I was gay from my association with the offender." 31He developed smoking and drinking habits. He often lay awake at night playing over and over in his head what happened. Substance abuse enabled him to stop thinking. During his adult years talking to his partner and his mother helped him to understand that what occurred was not his fault but still to this day says: "I cannot fathom why I let it happen". Reliving this again through the whole process of police interviews, giving details of past events, was very difficult for him. As the facts I have read out showed, SL was seriously abused by the offender on a number of occasions. 32RB said that "the abuse I suffered as a child" affected him, affected his family. His father carried the shame that he did not protect him against the offender. However, he is lucky to have the love of his family and friends and he is dealing with the situation. 33The offender has no criminal antecedents. He is fiftyeight years of age. A number of testimonials were tendered, they spoke of his good character and all say that these offences are totally out of character for the man they knew. They speak very highly of him. Other than his father none of these persons knew the offender at the time of these offences and so they came in at a later time when he clearly was of good behaviour. His father, of course, has suffered deeply as a result of what his son did. I understand there was significant publicity and at the conclusion of that publicity no other victims came forward and it can be accepted that, other than for the period that these offences occurred, the offender has been a person of good behaviour and a good citizen, highly regarded in the community. 34I have read and considered the presentence report. The offender has been employed most of his life. He suffers from a chronic back injury, he will require treatment and it is important that he not suffer further back trauma. Dr Joseph said that he needs access to treatment for his back. There is also a letter from Justice Health, exhibit 4, relating to what treatment he can expect whilst in custody and I have read that and considered those matters. They include that it is unlikely that they can provide chiropractic treatment, but they can deal with back problems and it is not uncommon for prisoners to have such problems. Exhibit 2 is a report of a chiropractor and X-rays and I will take into account the offender has a significant back problem and that will make the serving of a fulltime custodial sentence more difficult and that he is unlikely to get chiropractic treatment in gaol. However, I also note what Justice Health has said. 35There is a further report from Dr Nielssen, psychiatrist. The doctor sets out an extensive history and some of it is very relevant. He says: "When asked about the background of the offences the offender said that he came from a family with a Victorian attitude to sexual matters and he had no sexual guidance during his upbringing. He said that both of his parents and his older brother often made homophobic remarks and were hostile towards homosexuals and he found it impossible to acknowledge any homosexual interest. During his teenage years he had never had any kind of homosexual encounter apart from his own experience. He had been sexually interfered with at the ages of eleven and fifteen. It was only in his mid-twenties that he recognised and acknowledged his homosexual interests. He said he'd been a very anxious and law-abiding person all his life, he was completely nave in his recognition of the seriousness of the wrongdoing at the time. He didn't make any threat or use coercion in committing any of the offences. He denied performing any grooming behaviour and denied having any particular attraction to children or young persons and attributed his behaviour to the circumstances of camping out." 36The doctor diagnosed an adjustment disorder with depressed mood. He said that diagnosis of adjustment disorder or a clinically significant response to a life event is based on the offender's account of symptoms and then he goes on to set those out. Consideration was given as to whether he had a disorder of abnormal sexual interest, such as homosexual paedophilia, but the offender denied that. The offender reported two long-term relationships with adult men, although they were younger than him there was no history of any further such offences. At the time of the offences he was very nave about sexual matters, did not recognise the seriousness of his behaviour or the potential effect on the boys or the charges he might face. He had great difficulty in acknowledging his homosexual orientation and seeking appropriate relationships. He has expressed a high degree of remorse for his behaviour. He thought there was a low risk of re-offending. The usual course for an adjustment disorder is recovery over time. However, if the symptoms of depression did persist it will become more severe and disabling, further evaluation may be needed. 37There was also a report tendered from Stuart Perritt, clinical psychologist. He said that the offender impressed as an open, honest and reflective person. He was not found to be suffering from any mental health problems and he also said that he was the product of a rather rigid family life, he experienced very little warmth or affection throughout his childhood, he was sexually abused. The offences he committed and has confessed to was a result of behaviour conducted by a young man with little or no knowledge of the implications for the victims. He was extremely sexually nave at the time of the offences and had little insight. He is now appropriately remorseful and expressed extreme regret and perhaps he needed some treatment. 38These documents set out a history which really was unremarkable. The offender had a good upbringing, a good work history. He does have an adjustment disorder and a depressed mood now, however, they did highlight a matter I will come to shortly. 39The offender has pleaded guilty at an early time. There were two ways I could look at that but whichever way I looked at it, it was agreed that I should discount the head sentence I would have imposed by twentyfive per cent, and I will so discount it and I did. That means that I would have imposed a head sentence of twelve years imprisonment but I discounted it by twentyfive per cent for that plea of guilty. He has expressed regret and remorse for his actions, and I have no doubt he has that. 40These are most serious offences. It is not disputed that he must be sentenced to a term of fulltime custody. The offences generally were committed against young boys, ten to fourteen years of age. These young boys were very vulnerable. The offender was in a position of trust, he abused that trust. He was a leader in the Boys Society and such a breach is extremely serious. The boys have been deeply affected. He must be sentenced in such a way that he realises that he cannot offend in this way, I am sure he does, but more importantly that others in the community realise if they commit sexual offences against young boys or young girls they will be sentenced to lengthy terms of imprisonment. This sort of behaviour cannot be tolerated in this community. They will be sentenced to terms of imprisonment. The victims' impact statements speak for themselves and show exactly what one would expect as to how these young men have been affected. 41It is submitted on his behalf that there are a number of mitigating factors, and I take these into account. They are that he has no criminal record, he has been a person of good behaviour since completion of this period when he committed these offences. It is probably unlikely he will re-offend. He now seems to have come to grips with his homosexuality and has had partners for some time. I think he has good prospects for rehabilitation. He has expressed remorse and, of course, he has pleaded guilty. 42On the other hand it is correctly submitted that there are aggravating factors. They include that he abused the position of trust or authority. He was a leader for the church in this area of the boys, the boys all went there. Each of the victims trusted him, their parents trusted him. He was in clearly a position of trust and authority. The victims were vulnerable, they were young. Now that is part of the charge but it is a fact that they were very vulnerable. I do not quite know how you assess whether it was part of a planned or organised criminal activity. It was obviously from time to time planned, but it seems to me it is more likely to be a spur of the moment sort of thing, the opportunity presented itself and he took it. 43There is an important matter I need to take into account and to deal with, and that is the delay between the commission of these offences and his sentence. It is somewhere in excess of thirty years. It is a very unusual circumstance because he committed these offences when he was quite a young man. When he ceased committing these offences he became an excellent member of this community, highly respected, and has remained that way. Unfortunately, we have a number of these sorts of cases where many years before children are sexually abused and it does not come out for a long time, and so the Court has clearly had experience in these sorts of sentences. I am referred to a case of R v MJR (2002) 54 NSWLR 368 and in particular where President Mason J said that you have to take into account the sentencing practices as at the date of the commission of an offence when the sentencing practices have moved adversely to the offender. And there are other cases reviewed which clearly show they have moved adversely to the offender, in that today a much higher sentence would be imposed than would have been imposed had this come before the Court thirty years ago. So it is necessary to approach the matter in the way Howie J suggested in R v Moon (2000) 117 A Crim R 497 which was then approved by the Court in R v MJR by Sully J who said: "The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime. The sentences should reflect the objective seriousness of the offence. When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the Court will by approaching the sentencing task in this very way effectively sentence the offender in accordance with the policy of the legislature." 44It was also pointed out in Featherstone , which I will come to in a minute, (2008) 183 A Crim R 540, that it is not authority for the proposition that whenever a small number of cases are presented the sentencing judge should be able to discern the sentencing pattern; to the contrary. There is simply a statement by the Court that on a particular occasion, having regard to the information placed before it, a pattern could be discerned. But what I do have to do is to take into account that when persons were sentenced thirty years ago there was a different non-parole regime in place. Today, of course, the standard non-parole period is threequarters of the head sentence. However, it was not back at that time and I have taken that into account, particularly in reaching the non-parole period and in special circumstances. 45The other matter I need to deal with is this. The offender was a young man at the time of these offences, in his early twenties. He was a confused man sexually. I have been told, and I accept, that he was brought up as other people would have been at the time in a household which would not have let him practice any homosexual tendencies or to have any homosexual relationships or anything like that. I accept that and I accept he was a confused young man and that his situation today is totally different. I accept he is a different person today. His family was, as many families were at that time, hostile towards homosexuality, he could not acknowledge it, he was nave, he was confused, and I accept that had a significant effect on his offending and probably explains why he offended. Of course, it does not excuse it. 46I am satisfied that there are special circumstances. Firstly, his age, he has not previously been in gaol, he has a significant back condition, there was a different sentencing pattern at the time of the commission of the offences. The nonparole period was more likely to be less than the threequarters it currently is and I have taken that into account. I think I arrive, in rough figures, at a nonparole period of about sixty per cent. I am not doing that totally carefully mathematically but it is in that range instead of seventyfive per cent, which I believe takes into account those matters. He must be sentenced, of course, on the basis that there were six boys involved, it was not one, this was six boys and no doubt all have been seriously affected. 47I have been provided with a number of different cases and I have looked at them and I have also looked at other material. I think the most helpful of those cases is a case of Featherstone [2008] NSWCCA 71. It is quite a similar sentence to this. It was a sentence where there were ten counts but one of the counts had a large number of matters on a Form 1. The matters on the Form 1 were in the form of s 81 offences. Mr Featherstone was sentenced in relation to I think four boys and was sentenced by the sentencing judge to a term of imprisonment of sixteen years and eleven months with a nonparole period of twelve years and eleven months. He was subsequently sentenced by the Court of Criminal Appeal to a head sentence of twelve and a half years and non-parole period of seven years. Obviously at some stage he pleaded guilty. 48There was a review there of a number of different cases where varying sentences had been imposed at or about the time of these offences. Featherstone's offences took place in the early eighties and there was quite a review in there. However, as I said earlier, the Court in the end said you have got to look at each one on its merits, you have got to look at the facts and everything else. So you just cannot establish a sentencing pattern but it does assist in reaching a pattern to the extent that all of the sentences were for lengthy periods of time, and a number of them were for similar offences. It showed, I suppose to this degree, that even in those days, that is in the eighties, when you were sentencing someone for offences then the penalties being imposed were quite severe. I also have to remember that in Featherstone the maximum sentence was ten years, not fourteen years. I have not sentenced him to the same sentence as Featherstone was sentenced to because I have tried to analyse this sentence as the Court of Criminal Appeal has said it should be. 49Of course, I have to accumulate a number of these sentences, it makes the sentencing exercise extremely difficult, but I am required to do that and that is why, particularly when you come to charge number 11, it may seem that the non-parole period is totally out of proportion compared to, for instance, charge number 9. But of course the reason that has to happen in the end is so when you come to an overall sentencing pattern you get the sentence correct and balance what the head sentence and the non-parole period should be. So I make that quite clear, that was done quite deliberately. This is such a complex sentencing exercise with all these offences I have to adjust down one of the non-parole periods to make it all fit in. 50On charge number 1, I convict you and sentence you to a term of imprisonment which consists of a non-parole period of one year and two months and a total term of two years, both to date from 4 March 2011. 51On charges number 2 and 3 concurrently I convict you and sentence you to a term of imprisonment which consists of a non-parole period of one year and two months and a total term of two years, both to date from 4 September 2011. 52On charge number 4 I convict you and sentence you to a term of imprisonment which consists of a non-parole period of one year and two months and a total term of two years, both to date from 4 September 2012. 53On charge number 5 I convict you and sentence you to a term of imprisonment which consists of a non-parole period of three years and seven months and a total term of six years, both to date from 4 September 2012. 54On charge number 6 I convict you and sentence you to a term of imprisonment which consists of a non-parole period of one year and two months and a total term of two years, both to date from 4 March 2013. 55On charge number 7 I convict you and sentence you to a term of imprisonment which consists of a non-parole period of one year and six months and a total term of two years and six months, both to date from 4 March 2013. 56On charge number 8 I convict you and sentence you to a term of imprisonment which consists of a non-parole period of one year and two months and a total term of two years, both to date from 4 September 2013. 57On charge number 9 I convict you and sentence you to a term of imprisonment which consists of a non-parole period of two years and six months and a total term of five years, both to date from 4 March 2014. 58On charge number 10 I convict you and sentence you to a term of imprisonment which consists of a non-parole period of one year and six months and a total term of two years and six months, both to date from 4 March 2014. 59On charge number 11 I convict you and sentence you to a term of imprisonment which consists of a non-parole period of one year and six months and a total term of five years, both to date from 4 March 2015. 60You will be eligible to be considered for release to parole on 3 September 2016 and I find special circumstances as previously set out.