HIS HONOUR: The prisoner Ernest John Lee appears today for sentence in relation to 12 offences to which he pleaded guilty upon an indictment asking the Court to take into account a number of other offences on Forms 1 related to five of the counts in the indictment.
Mr Lee was born on 20 May 1936 thus on my calculation he is now 81 years of age. However the offences with which I am concerned for sentencing were committed between March 1980 and April 1998. Ten of the offences to which the prisoner pleaded guilty on indictment were committed between March 1985 and, at the latest, 31 December 1985.
There are in these matters for sentence four separate complainants. I propose to outline, firstly, the charges brought against the prisoner and reflect so far as it relates to counts requiring discrete sentences the maximum penalties required for each offence and identify which counts are required to have Form 1 matters taken into account in sentencing, as well as the ages of the victims. I do not propose to publish the names of the victims. They shall be given letters to identify them save for the first victim who is the only female. She does not require that degree of anonymity that is reflected in letters being provided to identify the person as her situation is unique.
The first crime in time is an offence on a Form 1 of inciting a girl under the age of 16 years to commit an act of indecency and it is to be taken into account in relation to an offence of indecent assault of a female under the age of 16 years. This is the offence which was committed, as is pleaded in the indictment, between 1 March and 31 May 1980 at Miranda. The name of the female in fact is not published in the papers and her age is not disclosed in the agreed facts beyond she being identified as a "child". The offender in 1980 would have been approximately 43 or 44 years of age.
The maximum penalty was six years imprisonment. This is an offence contrary to s 76 Crimes Act and there was no standard non‑parole period. In fact there were no standard non‑parole periods at the time of the offending in relation to any of the offences.
The second offence in time involves a victim who I will describe as AA, a friend of the prisoner's son from school. This is an offence of indecent assault upon a person under the age of 16 years contrary to s 61E(1) Crimes Act 1900. This offence was committed shortly after the reforming legislation drafted by Dr Woods QC when he was the Director of the Criminal Law Review Division of the Attorney General's Department.
The next offence in the indictment count 3 is likewise an indecent assault of a person under the age of 16 years again contrary to s 61E(1) Crimes Act 1900 carrying the same maximum penalty of six years imprisonment. The offences in counts 2, 3, 4, 5, 6, 7, 8 and 9 (count 9 concerned with another victim who I shall refer to as BB) were all committed between March and May 1985. The victim in relation to counts 2 through to 8 inclusive, AA, was aged between 11 and 12 years.
Count 4 is another indecent assault of a person under the age of 16 years contrary to s 61E(1) Crimes Act 1900. In respect of count 4 I am required to take into account four matters on a Form 1. Count 5 is the same offence admitted by the prisoner by his plea contrary to s 61E(1) Crimes Act 1900 and there are three matters to be taken into account on a Form 1. Count 6 likewise is concerned with an offence contrary to s 61E(1) Crimes Act 1900 of indecently assaulting a person under the age of 16 years, as is count 7. Count 8 is another offence in identical terms which has two matters to be taken into account on a Form 1.
In respect of counts 9, 10 and 11, BB was ten years of age. Count 9 is concerned with an offence of indecent assault of a person under the age of 16 years again contrary to s 61E(1) Crimes Act 1900. Count 10 involving the same victim is an indecent assault on a person under the age of 16 years pursuant to the same provision as is count 11.
All those offences, that is the offences disclosed in counts 1 to 11 were committed in Miranda and in fact all the offences from counts 2 to 11 were committed in or about the home of the prisoner.
Count 12 is described as an aggravated indecent assault contrary to a provision of the Crimes Act which was introduced after the commission of the earlier offending. This is an offence contrary to s 61M(1) Crimes Act and carried at the relevant time a maximum penalty of seven years imprisonment. That victim who I will refer to as CC was aged 12 years of age.
I have already referred to the character of the matter on the Form 1 related to count 1. In relation to the Form 1 in respect of count 4 the offences admitted by the offender are of indecent assault on two occasions, an offence of committing an act of indecency towards a person under the age of 16 years contrary to s 61(2) Crimes Act 1900 and an offence of inciting a person under 16 years to commit an act of indecency contrary to the same provision.
In relation to count 5 the three matters on the Form 1 are two offences of inciting a person under the age of 16 to commit an act of indecency covered by the provision I have just referred to and an offence of indecent assault again contrary to s 61E(1) Crimes Act 1900.
In relation to count 8 in the indictment, again relating to AA, there are two offences on a Form 1 of inciting a person under the age of 16 years to commit an act of indecency, as I previously described, as well as an offence of common assault contrary to s 61 Crimes Act 1900 which carried a maximum penalty of two years imprisonment at that time.
In relation to the matter disclosed in count 9 concerning the victim BB, there are two offences of attempting to commit an indecent assault upon a person under the age of 16 years, an offence contrary to s 61E(1) Crimes Act 1900, on a Form 1.
The facts of the matter are set out in considerable detail and in chronological order in the agreed statement of facts. I do not propose to read the entire agreed statement of facts onto the record. But it is important that I at least identify the character of the offending revealed in relation to each of the counts and the matters on the Form 1.
As I said earlier, count 1 is concerned with a female victim whose age is not disclosed in the agreed facts. The first offence in time with which I am concerned, the matter on the Form 1 related to this count, involves the prisoner whilst watering his front lawn, exposing his penis to the complainant and inviting her to touch it.
On a separate occasion it would appear, although the period of time between each of these matters is not disclosed in the facts, the victim remembered being inside the prisoner's house and the prisoner instructing his son to use an "object" on her vagina. The victim cannot remember what the prisoner said. The son of the prisoner, who himself I take it was a child at the time, is said to have inserted the object "between the lips of her vagina". The victim went home and told her parents that the prisoner's son had "fiddled with her" and also complained of the exposure. The terms of the complaint seem to suggest that the two events were related in time but the facts do not say so. The victim's genital region was red and sore, but there is no other evidence of injury. I pause for a moment to point out, as it is relevant to the assessment of the objective criminality, that the words that were said to the son are not known.
The prisoner's son died of cancer, as I understand it, in 2012. The prisoner has shed no light upon the precise words that were said. I could not conclude, notwithstanding the objective facts, that the prisoner particularly directed his son to insert an object in the vagina of the complainant. I could not conclude beyond reasonable doubt, notwithstanding the submission made on this matter by the learned Crown, that this was a case of the prisoner, "sexualising" or introducing the son to sexual activity without further detailed evidence.
As I have pointed out earlier, the victim AA was a school friend of the prisoner's son. BB who apparently was a year or two younger, also knew the prisoner's son from school or from the neighbourhood. The various offences committed in counts 2 through to 11 were offences committed, as I said earlier, in and around the prisoner's home. The full details of their commission are set out in the agreed facts.
Count 2 is an allegation of the prisoner fondling the penis of the victim. Count 3 is an allegation of, on the following day, masturbating the victim. Count 9 is the next offence in time and said in the facts to be the following day after the events in count 3. In respect of that count, the victim had an injured groin after what appears to be an innocent accident, and the prisoner cupped his hand over the penis and the testicles of the victim.
The two matters on the Form 1 that are relevant to count 9 which is as I said, the next offence in time after count 3, themselves were committed some weeks after the events reflected in count 8. The first matter on the Form 1 is described as "some weeks" later and the second matter on the Form 1 is described as "a couple of weeks later" from the first matter on the Form 1. Those matters on the Form 1 at a later time which are attempts to commit an indecent assault, related to the prisoner reaching out and attempting to take hold or grab hold of the genitals of the victim. Again, those matters relate to the victim BB.
Count 4 relating to the victim AA, occurred at night time at the prisoner's home and involved masturbation of the victim. In relation to the matters on the Form 1 these offences related to either the prisoner masturbating the complainant or having the victim masturbate him. The details in the facts suggest that the offences in the count and in the Form 1 occurred over the course of an evening or the following morning and were very closely related in time.
So far as count 5 is concerned, this is again another allegation of masturbating the victim AA and the matters on the Form 1 relate to the victim shortly afterwards masturbating the prisoner. And then at a later time, the prisoner masturbating the victim in the lounge room and having the complainant masturbate him in the same area.
Count 6 is the following day after count 5. Again the prisoner indecently assaulted the victim, this time by grabbing him in the crotch area it is said in the facts on three occasions during the day.
The next day gives rise to the matter in count 7. This allegation involves the prisoner grabbing the crotch area of the victim and tapping his bottom.
Count 8 involves an allegation of masturbating the complainant with two matters on a Form 1, in which the complainant masturbated the prisoner and an allegation of common assault committed by the prisoner upon the victim when he grabbed him in circumstances which led to the severing of their relationship and the victim not returning to the prisoner's house.
The crimes committed against AA were more numerous, and to my mind, involved the most serious conducted alleged against the prisoner in respect of each of the complainants, given the intensity of the offending and the character of the offending.
Count 10, the next offence in time after count 8, involved the victim BB, who as I said earlier, was 10 years of age at the relevant time and this involved the grabbing of the penis of the victim. Count 11, also involved the grabbing of the penis of the victim in circumstances I need not dilate upon except on this occasion, the victim, although very young, told the prisoner to "fuck off" and their relationship, or the occasions of that victim visiting the house of the prisoner, ceased.
Count 12, the last count, is quite separate from the course of offending over 1985. This victim, CC, was attending the Homebush athletics track in April 1998. The prisoner, I should point out, had an association with athletics as a volunteer coach and the like. One of the matters I will refer to in a moment reflects upon his conduct in the Sutherland Shire which led to criminal convictions in the mid 90's, arising out of his presence in athletic track. The short facts of this matter are that the prisoner and the victim were packing away high jump equipment at the athletic track at Homebush near the Olympic Stadium I would assume, and whilst in the shed with the prisoner, the prisoner wrapped his arms around the shoulders of the victim, placed his hands on the victim's chest and told the victim as he pulled the victim close to his body, "I like little boys". The prisoner held the complainant against his body for approximately 10 seconds before leaning over and having his cheek press against the right side of the complainant's face. The prisoner continued holding the victim against him before pressing his erect penis into the complainant's back. The prisoner started moving his hands down the front of the complainant's body in much the same way as he had 13 years before in relation to other victims. The prisoner touched the victim's stomach and then eventually touched the crotch area, the hand of the prisoner however remaining outside of the victim's pants. The prisoner's thumb then entered the front of the victim's pants and underwear touching the complainant's skin. Eventually the prisoner touched and groped the victim's penis for approximately five seconds but the victim struggled away. The prisoner told the victim not to say anything about what had happened and the victim left the shed and never spoke to the prisoner again. He was, as I said earlier, 12 years of age.
The prisoner was arrested in relation to these matters on 29 April 2015. He gave no account of himself which was his right beyond, as I understand it from the facts, "denying the charges", if I can paraphrase the words in the agreed facts. Those denials of course were worthless.
His criminal history reveals that he had no prior criminal convictions up until he appeared at the Sutherland Local Court on 23 June 1994 in respect of offences for which he was arrested on 3 March 1994. The offences that he ultimately was convicted of at the Local Court were each committed on 10 February 1994 at "Sylvania Waters", which I take to be at the athletic track in that area. One offence was procuring a male person under the age of
18 years, to wit 15 years, to be the party to the commission of an act of gross indecency with a male person. That is an offence contrary to s 78Q(2) Crimes Act 1900, and obviously can be dealt with summarily. There was a second offence contrary to s 61L, as it then was, of indecent assault upon the same victim on the same date.
The facts of that matter, because they are reflective of the character of the conduct against a number of victims that I am presently concerned with, are that the victim was at the Sylvania athletics field, the prisoner was there as a volunteer where he worked on Tuesdays and Thursdays. The prisoner was talking to the victim, touched him several times on the buttocks and eventually the conversation turned to the possibility of the victim attending the prisoner's address. The prisoner asked the victim; "Have you ever had your dick sucked before". He later said, "don't worry we will try that". He made other comments about the victim and his appearance. The victim believed that the prisoner wanted some sexual contact with him and became scared. During the conversation, the prisoner handed the victim a piece of paper with his name and telephone number on it. The victim threw that paper away but reported the matter to his mother.
For those offences for which as I said he was dealt with in the Local Court, he was ordered to serve 100 hours community service. There is nothing particularly extraordinary about that at the time of being sentenced in 1994. He would have come forward for sentence as a man in his late fifties, 57 or 58 years of age without prior criminal convictions and of course the sentencing officer would have had no idea that the prisoner was in fact an unconvicted sexual offender of the character that I have outlined.
The matter was dealt with in the Local Court where there is a much lesser sentencing jurisdiction available, or much lower maximum penalty available, than available in the District Court of New South Wales.
With regard to the prisoner's criminal history as was discussed in the submissions last Thursday week, clearly in sentencing the prisoner in respect of count 1, and the matter on the Form 1, I sentence him in relation to that matter, as serious as the allegation is, on the basis that the prisoner was a person without prior convictions, was a person then of good character, and if that matter had stood alone, even after, immediately after the event he was brought to court, I accept there is a possibility that he may have been ordered to serve a non-custodial sentence. It is difficult to know because if the matter had been reported earlier in time there might have been more particulars available, such as what the prisoner had said to the victim. There might have been more details available than I have, such as the age of the child and the like.
So far as counts 2, 3 to count 11 are concerned the offences committed in 1985, most of them as I said, committed between March and May of 1985, whilst at the time of the commission of those offences the prisoner did not have any prior criminal convictions, the truth of the matter was at the time of committing those offences he was an unconvicted offender, insofar as the facts now revealed, he had committed the earlier acts of indecency in a general sense upon the female victim some five years before.
Thus, in dealing with the issue of character as opposed to the issue of absence of criminal convictions I could not conclude in respect of counts 2 and following that the prisoner was relevantly a person of good character at the time of the offending. Although I accept that being undetected he would otherwise have been perceived as a person of good character, at the relevant time. The background of the prisoner reveals that he's got a degree in engineering, he worked for a number of years at Lucas Heights, at a facility that's had a range of descriptions over the years, but is usually referred to locally as the 'Atomic Agency' headquarters for Australia.
I accept that he was in his employment an industrious person. As I understand the matter he retired with an unblemished record as an employee at the age of 55 presumably when his superannuation had matured. It is to be thus recognised that as the offending continued over a period of time as each offence was committed, the prisoner in reality, as I see the matter now from my perspective, had this increasing body of criminal conduct, as at the relevant time undetected. Thus, we get to the point when the prisoner commits the penultimate offence in time the prisoner at that point, although uncharged and unconvicted for the current matters, has obviously no good character to rely upon. Other than the ostensible fact that he had no prior criminal convictions, because he was an undetected sexual offender and had committed a large number of offences beforehand. The 1998 offence was committed after his conviction for the 1994 offence on his criminal history.
There are, in total it should be pointed out, 24 offences with which I am concerned, albeit it 12 of those are on Forms 1. I do not criticise the way in which the matter was presented to me, I can see the logic of a large number of matters spread over time relating to different victims being placed on separate Forms 1. But it is a matter of some complication in sentencing an offender when there are a large number of counts but there are also a number of forms one that are attaching to different counts to be taken into account by the court.
In respect of the issue of a matter on a Form 1, the Court of Criminal Appeal has discussed the relevance of matters on a Form 1 in a number of decisions. But particularly I refer to the guideline judgment of some age now from 2002 that is Attorney's General Application No 1 of 2002 [2002] 56 NSWLR. I particularly refer to that part of the judgment between [18]-[44]. The Court in summary held in that judgment that the fact that there are matters on a Form 1 in relation to a particular count means that greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution in respect of the count for sentencing. The Court of Criminal Appeal said: "The entire point of the process", is to impose a longer sentence, or to use my words, alter the nature of the sentence that would have been imposed if the principal offence for sentence stood alone. It was said by the Court that it was wrong to suggest that the additional penalty should be small, sometimes it will be substantial.
However, the Court pointed out by reference to the legislative provisions then prevailing, which are much the same now, that the Court sentencing process is only concerned with the principal offence. Not to determine appropriate sentences for matters listed on a Form 1 or to determine an overall sentence that would be appropriate for all the offences, that is all the offences on the Form 1 in conjunction with the principal offence and apply a discount given appropriate weight to the matters I have referred to above. The Court stated that: "Deterrence and retribution are entitled to greater weight than they may otherwise be given when sentencing for the primary offence." There are matters which will limit the extent to which this will be so, including the maximum penalty for the primary offence and also consideration of the principle of totality. Again, these remarks I am identifying from the Court of Criminal Appeal judgment are concerned with dealing with a particular principal count, taking into account matters on a Form 1, which is the case in respect of five of the counts on the indictment.
The Court said in this process that it would, "rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence from taking into account Form 1 matters" See [44].
The Court also said that offences included on a Form :
"Will have a significantly lower salience in the sentencing process for various reasons. However a judge must be careful to assess whether it is appropriate to proceed to sentence on that basis on occasions, as there may be cases where the administration of justice could be brought into disrepute by the Court proceeding to sentence a person guilty of a course of criminal conduct on a manifestly inadequate, unduly narrow or artificial basis:.
I will come back to the issue of totality in a while when I deal with the reasons and I have determined that there should be an aggregate sentence. But putting aside the relevance of totality of criminality to the process of taking into account matters on a Form 1, in this particular sentencing exercise, with its many complications, there are matters of 'totality' to be taken into account in respect of the sentencing of the offender for all the criminality. Bearing in mind, not only the number of offences, but the period of time over which the offences were committed and, of course, the number of victims involved. Whilst two of the victims have a relationship with the prisoner in time to each other, two of the victims are quite separate in time to the bulk of the offending with which I am now concerned.
I have a report from the Community Corrections Service. It reflects upon his supervision in 1994 and notes that he successfully completed the sentences or orders made in 1994 with no "adverse reports". He has a full time carer for reasons I will come to in a moment, given his age and his other health issues. He is a man who lives alone, in a home that he's occupied apparently for some 40 odd years. As I earlier indicated his only child has been dead since 2012 and his partner, the mother of the child, apparently separated from him shortly after his son was born. It would appear that he had the responsibility of the care of his son. I have earlier indicated his academic qualifications. The organisation at Lucas Heights is identified in the facts more precisely as the Australian Nuclear Science and Technology Organisation.
Whilst he made admissions to Community Corrections in relation to the offending, he said that he was experimenting sexually. He believed the conduct was on a consensual basis and things were done that "weren't talked about". He said in respect of his attitude to the offending that he had pleaded guilty believing he had no hope of getting a 'not guilty' verdict. However, he also made allegations of the complainants concocting allegations against him and seemed to minimise his responsibility for his conduct. The Community Corrections Service noted that he appeared "to lack insight into the ramifications of his behaviour", was "dismissive of his actions and gave the impression that he was perplexed as to how and why these charges had arisen and resulted in the matters now before the court."
It was pointed out that he had not received appropriate treatment or counselling relating to the character of his offending being self-evident of course from the facts that I have outlined. The prisoner, it would appear was bi-sexual man when he was involved in sexual activity. Not that that excuses or even explains his sexual attraction to young boys and in one or two instances to a young girl. He is assessed at a low to medium risk of re-offending on the particular assessment undertaken by the Community Corrections Service. He was referred to the Community Corrections Services Psychological Unit for assessment. I have an assessment which is attached to the report, but I note in relation to the assessment that the assessment was done without actually interviewing the prisoner which seems to me to suggest some deficiency. Although it would seem to me also that there was material available upon which some comment could be made. The report that is attached to the Community Corrections Service from the senior psychologist of the Corrective Services New South Wales refers to reports that have not been provided to me. The only reports that were tendered in these proceedings were two reports from Dr Nielssen, one report prepared in relation to fitness to be tried proceedings and an updated report obviously prepared in preparation of the sentencing proceedings.
Dr Nielssen is a well-respected forensic psychiatrist whose opinions are sought, not just by defence interests, but also by the Crown. He has over 20 years or so in my experience prepared reports not just for sentencing, but in significant tries throughout this state including trials relating to murder. It must be however said, that his second report, the more recent report, presumably prepared in the context of the prisoner having pleaded guilty or about to plead guilty, does not really address the significant matter of the accused's reasons for behaving the way he did in his sexual conduct towards children.
The psychologist's report however addresses this more directly albeit in the absence of a personal interview with the prisoner. The prisoner was assessed via the actuarial instrument referred to as STATIC-99R and the score that he achieved taking into account static and dynamic factors placed him at a "low to medium" risk of offending in the future. Reading between the lines, though it is not spelt out, the most significant matter of it is dictated, by the prisoner's current age. It suggests that his interest in sexual matters has significantly declined as it does for men particularly as they get older. She refers to the "extensive body of research which indicates that the rates of sexual re-offending decline incrementally with age". She also said that there were factors not taken into account in this measure which must have caused anybody assessing the matter from the perspective of the tests she undertook to approach the conclusions with some circumspection.
The material that she surveyed provided a great deal of detail about the prisoner's background which I have taken into account, some of it in greater detail than available in the reports from the Community Corrections Service and from the report of Dr Nielssen. One of the sources of her information in a report from February 2017 which I haven't seen deals with the prisoner's current state of social isolation and the current interests of the prisoner and medication that he had taken in recent years. It noted in his history an absence of intimate partnerships, limited social support, emotional identification with children, deviant sexual interest, particularly in prepubescent males and ongoing access to teenage males via the internet. I take this to be a more recent development given the development of the internet has only become a reality after the last of the offending with which I am concerned. It indicates in the report that there should be further assessment of him at a future time.
The report states that, "Although all of Mr Lee's offences occurred in the 1980s-1990s file review indicates that he may continue to have a number of dynamic risk factors relevant to sexual offending. Further assessment would be required to confirm these dynamic risk factors." If he received a custody based sentence, he would be referred to the "Sex Offender Programs", for possible inclusion in their programs and that he would require a certain period of time for those programs to be completed. But I have not fashioned the sentence simply to accommodate the likelihood or not of him undertaking some program whilst in custody.
He could also receive some treatment via a community based program, but as I will point out in some little detail in a moment the prisoner's offending in its totality or even looked at individually passes the threshold set down by s 5 Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred to as the Act.
Dr Nielssen, as I said, prepared two reports and those reports constituted the only evidence adduced on behalf of the prisoner directly. The prisoner did not give evidence before me. Not that I hold that against him.
The first report dated 16 September 2016 sets out a deal of history, some of it particularly addressing the issue of his fitness to be tried. In terms of his medical history, which was quoted extensively by his learned counsel in her submissions, he provides some details. Although the details that he provides would appear to come from the prisoner himself (not that I discount what the prisoner has told the doctor) it seems to me, with respect, that in the context of sentencing a man who is said to have a range of significant health issues more direct evidence could have been available from a general practitioner or particular doctors that he treated him over more recent years.
He stated to the doctor that he was taking an antidepressant which the doctor himself worked out to be Effexor. He said that he had high blood pressure and became short of breath after walking short distances. He had no history of head injury and was not aware of having had a stroke, but he did have weakness in his left arm and a recent CT scan showed several small strokes. This last piece of information may have come from something provided to the doctor. It is unclear from his report. He lost an eye as a child which would have been a debilitating and distressing disability to wear through life. He had had two knee replacements in recent years and he took a range of medications for his blood pressure, his depression and for arthritis, although he did not remember the names. He was not a user of illegal drugs. He did not have gambling difficulties. Some information was provided by his carer. ACT scan was available to the doctor, I should point out, on further reference to his report, showing, "Generalised mild to moderate parenchymal loss (shrinkage of the brain) and changes in the periventricular white matter from minor chronic micro vascular ischemic disease". This I take to be a reference to minor strokes. "The carotid artery Doppler scan showed no significant narrowing of the carotid arteries, often a source of clots, causing strokes".
After examining the prisoner clinically at that point he determined the primary psychiatric diagnosis was 'dementia'. He undertook a short test to develop a score to identify the level of dementia and determine at that point that the prisoner was unfit for trial. His condition was permanent and progressive. He said the prognosis for dementia is generally poor with the average survival after diagnosis between 2 and four years depending on the severity of the dementia at the time of diagnosis. I must say, not that my personal experience means anything, but my father is 95 he has been diagnosed with dementia for ten years. Although he is now in a pathetic state he is still with us.
The further report of 16 February 2018 is the report I earlier referred to that really does not address the significant issue of his sexual interests, although the Corrective Services report from the psychologist does. In this report Dr Nielssen diagnosed, "Mild dementia". He indicated in reality that the prisoner's condition was much the same as it had been 18 months or so before, he said on this occasion the prisoner when assessed did not appear depressed or concerned about the prospect of imprisonment, although he may have been putting on a bit of a show in that regard. His thought was impaired he lost the theme of questions and digressed a great deal. He had impairment in short term memory, word generation, and language function. He was also observed to be by the doctor, markedly more physical frail with a marked stoop and weakness in his left arm more apparent. He had a coarse tremor made worse by effort. His hearing was quite impaired, he was disorganised in his behaviour, had trouble filling in a form and could not remember his own telephone number and was hesitant in gathering his belongings at the end of the interview. He thought there had been no decline in mental performance in the 18 months. He made this observation about the prisoner's prospects in the prison system.
"Mr Lee's situation as an elderly man facing imprisonment for historical sexual offences is not unusual and there are several units at Long Bay Correctional Centre for inmates with cognitive impairment. However, that does not mean that New South Wales prisons are able to adequately care for very elderly prisoners with poor physical health or dementia. Most of the care that is provided is from other prisoners and elderly prisoners face the same difficulties gaining access to healthcare reported by many other prisoners. I am aware of a number of cases of serious neglect of very elderly prisoners with dementia."
He also made the point as he had made it in the earlier report that vascular dementia typically progresses in a stepwise way as he pointed out "with sudden declines" following new mini strokes and the prognosis for dementia was generally poor.
I have taken that material into account and I accept as a general proposition that the circumstances of custody for this prisoner, even if placed in a special unit more attached to a medical regime than a corrective regime, will be harsher than they would be for prisoners ordinarily serving their sentence. Of course there is the risk whilst in custody of a diminution in the prisoner's condition, making the circumstances of his custody more difficult for him. However, I point out that these matters, whilst taken into account and relevant to the sentencing process, cannot deny the need for some term of imprisonment to be imposed, coming back to all the purposes of sentencing that I am required to take into account.
The prisoner is a person who will to some extent be vulnerable in custody, notwithstanding any particular classification that is made of him to place him in a particular or special unit, and of course he is a person who has never served any time in prison before.
It should be pointed out for the benefit of the public record of course that if this prisoner had come forward for sentence in relation to these crimes for example, in the late 1980s in respect of the offences disclosed in counts 1 to 11, particularly putting aside the issue of what sentencing practices were at the time and the like, the sentences to be imposed on him would have been greater if only for the particular matter that the prisoner would have gone into custody in a condition far superior to the condition that he presents in this Court at this time.
The other matter I should refer to in terms of evidentiary material before me, and I have not overlooked, are the victim impact statements that were produced to the Court from the victims and which were read by two of the victims. In the course of the conduct of the matter, objection was taken to the victim impact statements. In general terms amongst other things it was submitted that the form of the victim impact statements didn't comply with the requirements of the regulation, that the contents of the victim impact statements went beyond what was appropriate for a victim impact statement, or for victim impact statements. I have taken into account the objections that were taken and I accept, that, firstly, the form of the statements was less than desirable and did not meet with the regulatory requirements and what the Courts expect of a victim impact statement. This is not the fault of the victims, I hasten to say. It seems to me that victims should be able to get proper advice from the Director of Public Prosecution's officers about the form or format of the statements to be prepared.
It is also the case, as was accepted by the learned Crown Prosecutor in his submissions helpful as they were on this particular topic, that some of the matters that were adverted to in the reports or victim impact statements that were read, raised issues that were incapable in the form of a Victim Impact Statement of being established beyond reasonable doubt.
The circumstances in which victims attribute to the prisoner, events or circumstances that have befallen the victims since the offences raise particular difficulties for the fact finder, bearing in mind matters of aggravation or matters adverse to the prisoner, are matters required to be proven beyond reasonable doubt.
There is not a need in my view for me to go through it in detail, line by line, those matters. The statutory requirement for consideration of victim impact statements is set out in the Criminal Procedure Act. A court is required to consider a victim impact statement made by a primary victim. The giving of a victim impact statement is discretionary and certainly no inference can be drawn at the absence of a victim impact statement signifies that an offence has little or no impact on a victim. The evidentiary purpose and value of victim impact statements has been discussed by superior courts to my court in a range of cases. Those cases include the decisions of R v Berg [2004] NSWCCA 300 particularly at [48] - [49], R v Wilson [2005] NSWCCA 219 particularly at [25] and by Justice Basten of the Court of Appeal in R v Thomas [2007] NSWCCA 269, particularly at [36] - [37].
The authorities as well as decisions at first instance that I need not cite have commented upon the character of victim impact statements being given in an informal manner are not subject to the test of cross examination. But it must be said even without the benefit of the victim impact statement, disclosing information that properly falls within the character of what is appropriate in such a document, that the courts are well aware of the effects of sexual abuse on victims and have been for quite a number of years contrary to popular opinion. In practice I pointed out in another judgment I have given, the recognition of this effect has existed far longer than has been publicly conceded.
I note the observations of Spigelman CJ, and DBW v The Queen [2007] NSWCCA 236 relating to the widespread understanding from the evidence available in courts of these matters. Particularly I note a recent judgment on this matter of R v Gavel [2014] NSWCCA 56, particularly at [110]. As was said in that judgment if I might summarise it, child sexual offences to varying degrees of profound and deleterious effects on victims for many years if not the whole of their lives. Sexual abuse of children will inevitably give rise to psychological damage. The absolute prohibition on sexual activity with particular categories of people at the time of commission of particular offences is intended to protect children from the physical and psychological harm taken to be cause by premature sexual activity. This has been emphasised I hasten to say, by the enquiries and the findings of the Royal Commission into Institutional Child Abuse which has occupied public attention for quite some number of years.
In relation to this matter the issues that were raised in the submissions both in writing by the Crown and orally by the defence and Crown I have obviously taken into account. I propose to address a number of them now. I propose to accord the prisoner a discount for the utilitarian benefit of the plea of guilty in accordance with the guideline judgment of Thomson and Houlton and many subsequent cases. The exercise of the power to grant a discount is a discretionary exercise. The Court of Criminal Appeal in the guideline judgment set a guideline of between 25 and 10% discount that largely dependent upon the timing of the plea to measure the utilitarian benefit of the plea of guilty. Ordinarily if a person pleads guilty at the Local Court and is sentenced at the District Court or the Supreme Court, the court will give a discount of 25% simply to recognise the utilitarian value of the plea of guilty. If the prisoner pleads guilty on the day the trial is supposed to start or subsequently the discount will be approximately 10% or less.
Counsel for the prisoner submitted that I should give the prisoner a discount of 20%. I have taken into account her submissions in that regard but I found nothing to justify such a discount in this particular matter. The prisoner was committed for trial, the matter was the subject of a fitness enquiry, the prisoner was to go to trial as I understand it, on 6 July last year and pleaded guilty at some date after the date that the matter was listed for trial. On those bare facts alone, one might think that a discount of 10% would be appropriate to recognise the utilitarian value of the plea of guilty.
However in this particular matter there are some other features to take into account. I can appreciate in the context of the history of the matter and the age of the prisoner, the difficulties in obtaining instructions, particularly given 'fitness' issues have been raised and considered by learned counsel for the prisoner. I am also mindful, although it is not strictly relevant to the measure of the utilitarian benefit of the plea of guilty, the fact that the prisoner by pleading guilty although he had left the victims in some state of suspence has ultimately saved the victims the turmoil and burden of having to give evidence in relation to the offences committed against them, albeit some period of time ago.
I appreciate as I said that the guideline judgment made clear that the strength of the Crown case was not a relevant matter to assessing the value of the utilitarian plea. Thus what I am about to say ought not necessarily weigh in favour of the prisoner. But in my view in measuring a discount, if it be considered as something relevant to the facilitation of the course of justice rather than the utilitarian benefit of the plea of guilty, prosecuting such historical matters is difficult for the prosecution. Whilst there may have been some evidence as between AA and BB that might have provided, if not a corroboration or support, at least placed the opportunity for the prisoner to have committed the offences in a realistic context, there could have been difficulties for the prosecution in proving the guilt of the prisoner beyond reasonable doubt at least in relation to some of the counts. Because the prisoner's pleas have ultimately, albeit with little insight into his conduct, saved the victims from pleading guilty and bearing in mind, as his counsel pointed out, that given his physical and mental state, any trial to be conducted would have been a more complex matter than simply trying a prisoner who had no such difficulties, I have concluded that I should give the prisoner in relation to each plea of guilty a discount of 15% upon the otherwise appropriate sentence.
It was put to me that it was anticipated that if the trial proceeded, that the court may have been only able to sit for two hours a day. This would have prolonged the trial, it would have extended the cost to the community to the prosecution and to the defence and thus I am prepared to give the prisoner a discount above and beyond that, that might otherwise have been appropriate had the trial been conducted in a more expeditious fashion.
With regards to the issue of totality of criminality, obviously I am required to fix an appropriate sentence for each offence, and then turn my mind to the issue of totality of criminality and consider the issues of accumulation or partial accumulation and concurrency accordingly as required by the law. In that regard I have ultimately concluded as I have earlier indicated that I should impose an aggregate sentence in respect of the sentences to be imposed. I initially said to counsel that I did not think that I would do that, but on mature reflection I have determined that is the appropriate way to approach the matter. In considering the aggregate sentence that I have concluded is appropriate I have had regard to the respective maximum penalties which I have set out earlier. In my view this is an appropriate matter for an aggregate sentence, having regard to the complexity of the relationship of the offending between the various victims and the timing of various offences and the complications in my view in approaching the issue of fixing of a minimum term in light of some matters that were specifically raised by counsel by the prisoner which I accept.
The first thing I am required to do as I have said, is sentence in accordance with the principles laid down by the High Court in Pearce v The Queen (1998) 194 CLR 610, particularly in the majority judgment at [45]. There are a number of judgments that have subsequently addressed the complexity of considering the totality of criminality. I need only refer to a few. These include the decision of Hammoud from 2000, particularly the judgment of Simpson J, the decision of Howie J in Cahyadi [2007] NSWCCA 1 particularly at [27] and also the cautionary note reflected in the decision of BJW [2000] NSWCCA 60 particularly at [20] relating to the sentencing of multiple offences in relation to young children. More recently in terms of the principles in respect of an aggregate sentence is the decision of R v Van Ryn [2016] NSWCCA 1. This, in the context of being twelve separate counts with five separate Forms 1, is a matter in my view that is an appropriate matter for consideration of the aggregate sentence which I have foreshadowed.
In relation to fixing the aggregate sentence, putting aside the issue of totality and putting aside the consideration of the relevant maximum penalties, I have taken into account of course the requirements placed upon me by reference to the purposes of sentencing pursuant to s 3A of the Act particularly in this matter, there must be a need to ensure in all the circumstances the prisoner is adequately punished for the offending. There is an element of both general deterrence, which is of course of paramount importance in such offending, and that of personal deterrence. Although given the prisoner's age, the threat the prisoner poses for further offending in the future is greatly diminished. I am required to consider the protection of the community from the offender. Again that consideration at this point is more diminished than it would be had he been sentenced 20 years before and before s 3A existed. I have to make him accountable for his actions, denounce his conduct, recognise the harm done to his various victims and to promote his rehabilitation, as much as one could given his age. The issue of rehabilitation whilst important in all sentencing exercises is of less salience in this matter simply on the basis that I doubt that he is capable of further offending once he is released from gaol.
With regard to aggravating factors in respect of s 21A, putting aside the matters that I have identified from my summary of the facts, the Crown submitted that the offences, particularly the offences in relation to AA and BB involved a breach of trust on the part of the prisoner. In my view I could not conclude that a trust situation existed between the prisoner and the victims. True it is, particularly AA, was assaulted on occasions when he had stayed overnight with the prisoner's son. The other victim, BB, was at the house as was AA on occasions playing with the prisoner's son or in the house occupying themselves with activities provided by the prisoner. Whilst the prisoner had some responsibility for their wellbeing, being the master of the house so to speak, there is nothing in the evidence to suggest that the prisoner had undertaken some particular obligation at the request of the parents of the children. It seems as though the arrangements for these young people to visit the prisoner's house and play with the prisoner's son were very informal arrangements, obviously with the approval of the parents of the children involved.
I appreciate of course in relation to the issue of trust there are many degrees of trust. A person working in a disability shelter with the care of a disabled child would have a great deal more responsibility and accountability for the trust reposed in him or her, than a person who was asked to look after a child for a short period of time on a casual basis. A parent usually would have a greater responsibility so far as trust is concerned than a distant relative of a child. But nothing in the evidence provided to me indicates that apart from some inference to be drawn from the circumstances in which the children came to the house that a position of trust had been created between the prisoner and the victims, albeit that he did have responsibility for their welfare whilst they were inside his house, which I have already commented upon as an objective fact, capable of being taken into account pursuant to s 21A(1) of the Act.
I raised with counsel when the submissions were made to me about the issue of whether the son of the prisoner was some type of "honeypot". A 'mechanism', if that is the correct expression, or an 'instrument' for attracting young boys to the house. It is clear to me albeit in the absence of helpful contemporaneous psychological or psychiatric opinion that the prisoner was attracted to young boys. He made oral admissions to that fact in the commission of at least one of the offences. His conduct speaks for itself, the conduct of a grown man masturbating an 11 or 12 year old boy and asking the boy to masturbate him, speaks of a person who has a sexual attraction to young people. The son of the prisoner is dead and obviously cannot comment upon these matters. It is true that the prisoner had taken advantage of the relationship of the prisoner's son with AA and BB. But whether it was by planning or design or incidental to the fact that the prisoner had this sexual interest, I am unable to conclude without more evidence.
Whilst it could be said that some of the offences involved the prisoner taking advantage of children staying over and the like, particularly in the case of AA, there is not enough evidence to suggest that the prisoner had planned that that be so. There is a degree of opportunism, it must be said, in nearly all the offending, if not all the offending. For those offences that involved some sexual assault of the child staying overnight there is as I said, insufficient evidence to conclude ultimately that it was "planned" offending beyond reasonable doubt.
Turning to mitigating factors, I have dealt with the issue of character and the absence of any record or significant record and pointed out of course that the prisoner effectively lost his good character with the commission of the first offence in time. So far as the offences are concerned, ultimately I am prepared to conclude that they were not part of planned or organised criminal activity as a mitigating factor. So far as his likelihood of reoffending, if only because of his age, I am prepared to conclude that he is unlikely to reoffend. So far as his prospects of rehabilitation are concerned I note that he is unrepentant in reality for his conduct beyond what can be inferred or implied from his pleas of guilty. He has no insight into his offending. But in fairness to him, without the benefit of helpful expert opinion, it may well be that his lack of insight is a reflection of his current mental condition.
His current mental condition, while relevant to sentencing insofar as it affects his circumstances of custody, is not a matter of itself in my view that would lessen the weight that one would give to general deterrence, given his current condition is a product of his age many years after the offending had occurred. Obviously I cannot conclude that he is remorseful or contrite for his conduct, although his pleas of guilty are a mitigating factor in each matter for sentence, albeit that he receives a discrete discount for the plea of guilty.
With regard to another important issue in this particular trial, I note that the court is required, as near as possible, to sentence the prisoner in accordance with the sentencing practices and patterns at the time of the offending. This much was held by the Full Bench of the Court of Criminal Appeal in R v MJR [2002] NSWCCA 129. There are a large number of cases that I have been referred to and that I have referred to in my preparation of this judgment, that reflect this fundamental proposition. In the decision of Magnuson v The Queen [2013] NSWCCA 50, Button J at [84] - [90] with the Chief Judge at Common Law McClellan J and Bellew J agreeing, set out the principles that apply in the circumstance such as I am faced with here. His Honour noted in the paragraphs that I have cited, that a sentencing judge dealing with very old offences must take into account the sentencing patterns that existed at the time of the offences. I should point out for any person who is listening to this judgment of course, that the offending that the prisoner has admitted in relation to these particular offences would, if committed today, attract far greater maximum penalties than those provided for the offences that were committed. The last offence in time as I have pointed out has a maximum penalty of seven years imprisonment. All the other offences in time, according to the Crown's cover sheet, have maximum penalties of six years imprisonment. Offending of the types with which I am concerned now, could attract sentences with maximum penalties of up to 25 years and of course for offences created after the offending with which I am concerned there are many offences which have what are called standard non-parole periods which act as a guideline for the fixing of a non-parole period.
It was pointed out in Magnuson and in other decisions that if a pattern is unable to be discerned, the judge should commence the sentencing process in the usual way. That is by reference to the maximum penalty and the place in the range of objective gravity occupied by the offence, so it was held by the Court of Criminal Appeal in the decision of Moon v The Queen [2000] NSWCCA 534, which is helpful here for comparative sentencing purposes. Of course even if a sentencing judge does take an established sentencing pattern into account, but fails to adequately to reflect the proper principles to be applied, that may cause the sentence to be manifestly excessive or otherwise erroneous (see RWB v The Queen [2008] NSWCCA 93) particularly in relation to the issue of non-parole periods. In Magnuson it was held that if sentencing for offences committed at a time when the statutory ratio did not exist, sentencing judges should sentence in accordance with that fact, citing a 2007 decision of R v AJB [2007] NSWCCA 51. In Magnuson, Button J said that, however, a court sentencing today with regard to old offences must bear in mind that since 1974 it has been established that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all the purposes of justice, citing the High Court judgment Power v The Queen [1974] 131 CLR 623. Their Honours went on to apply those principles to the case in question.
I particularly cite that last matter because it became a matter of some debate as to the extent to which the court would have regard to practice in relation to non-parole periods. At the time of the commission of the offences with which I am concerned, it would seem, putting aside the offence committed last in time, that the offences in the 1980's are offences that fall within a period of time that has been the subject of discussion in the recent Court of Criminal Appeal decision of Denham v The Queen [2016] NSWCCA 309. That judgment cites the passages that I have earlier referred to, particularly Button J's judgment, and went on to say: "it is clear from the authorities cited above that sentences imposed during the period with which the present case was concerned involved the commission of non-parole periods comprising 35 to 50% of the head sentence" (citing the 2013 decision of MPB v The Queen [2013] NSWCCA 213). The decision in Denham to which I have referred, involved the commission of offences that were committed by the offender over a period of time through the 1980's and 1970's. The submissions developed to the point where the Crown conceded that Denham in effect dictated that not only was I to concern myself with sentencing patterns so far as the head sentences were concerned but also the appropriate fixing of the non-parole period.
Again for the benefit of anyone listening to this judgment, under the current legislation s 44 of the Crimes (Sentencing Procedure) Act 1999 the court can only vary the relationship of the non-parole period of the balance of sentence if there are "special circumstances". The variation of the relationship of the non-parole period to the balance of the sentence is a discretionary matter. But it is highly unusual in modern sentencing as opposed to sentencing, in the 1980's and the 1970's through which I have lived, to fix a non-parole period less than 50% as a reflection of effective non-parole period in respect of the totality of the criminality. There will be circumstances where there are accumulations to be made where the fixing of the non-parole period less than 50% for a particular sentence may occur, but if only to ensure that the effective non-parole period reflected either the "special circumstances" or made the non-parole period consistent with what is sometimes called the "statutory ratio" which is 75% of the total sentence. In fact the decision of Astill, an early judgment after the passing of the Sentencing Act in 1989, concluded that accumulation was itself a "special circumstance" requiring adjustment of the relevant non-parole period. If one does not adjust the relevant non-parole period in fixing the final sentence, one could end up with a ridiculous result of a non-parole period that effectively amounted to 90% of the total sentence to be imposed.
I point out in relation to this matter, reflecting upon s 44 of the Act, that there are special circumstances. There are many. The combination of the effect of any accumulation if I was fixing separate sentences for each offence, the fact that the prisoner would need an extended period of supervision to adjust to community living given his age and his health issues, the fact that his circumstances of custody will be more onerous than other prisoners, the fact that he is being gaoled for the first time, the fact that he will need professional guidance on his release from custody to avoid further offending, should he have the libido to undertake such conduct on his release to custody.
Thus, in the circumstances of the matter, I have determined a non-parole period that in respect of the aggregate sentence, will be less than 50% of the total sentence to be imposed, in accordance with what I understand from the contents of the judgment to which I have referred to be the sentencing practices of the era when most of the offending was committed. I appreciate of course that the Sentencing Act was introduced in 1989 and of course, the last offence in time was committed at a time when the operation of s 9 of the Sentencing Act, which was the equivalent of s 44 of the current Act, would have had to be considered. But the offending in relation to the last offence in time was not in my view as serious as the offending of the prisoner towards AA and BB particularly.
In relation to the issue of sentencing practices, the Crown provided to the Court in its helpful written submissions, a schedule of cases which were said, on the Crown's submission, to show something of the sentencing patterns at the time. I do not want to go back to what we discussed at some length, but I pointed out in our discussion that many of the judgments cited by the Crown, although they are helpful in their own way, were not concerned with the same period of time with which this Court is concerned now. I have put on the record earlier, by reference to the Crown's schedule, my regard of the various decisions that at least had a contemporaneity with the offending with which I am concerned. Of course, some of those cases involve quite different offending. Some more serious offences, some involved offences committed against the children of the relevant prisoner which would be a more serious form of offending in many respects. Some of the offences related to conduct that was defended by the prisoner and other differences were clear just from the summary of the Crown.
I have also in considering this matter, had regard to judgments that I have delivered in relation to the sentencing of offenders for this period of time, such as R v Anning [2014] NSWDC 359, and a decision in the matter of Collins from 2017. Particularly of the various judgments I have had regard to is the decision of R S Hulme J in PWB v The Queen [2011] NSWCCA 84, where his Honour at considerable length with an accompanying schedule, discusses details in relation to the sentencing of offenders in respect of offences particularly under s 61E(1) and s 61M(2) over roughly the same period of time as the bulk of the offending with which I am concerned. Of course, comparative cases can provide some assistance but ultimately, as is self-evident to anybody experienced in the law, each case will throw up its own special and unique facts. I have addressed the issue of the purposes of sentencing and I accept what the Crown has said concerning decisions of high authority relating to the significance of maximum penalties.
I also accept everything that has been put by the Crown about the sentencing of offenders in relation to child sexual offences. Each such matters require particular attention to general and special deterrence. He pointed out, it was held as long ago as 1999 in the decision of Rapley, that even in the situation of an older prisoner with an absence of criminal history, and the fact that the offences may occur spontaneously or opportunistically, are common features of cases where children are the subject of sexual abuse. Although that decision was addressing its attention to the question of whether it was appropriate to impose a full-time custodial sentence which is clearly the situation here. I have had regard to what the Crown and the defence have put to me about the victim impact statements and I have commented upon that matter before. I have also commented upon the overall sentencing range to be considered by reference to the sentencing practices of the past.
The Crown's ultimate submission about 'trust' I have already dealt with. The Crown submits that the relative seriousness of the offender's multiplicity of offending in circumstances where he is motivated to pursue his own sexual gratification at the expense of the victim's childhood and innocence, inevitably leads to the conclusion that the offences should be characterised as "grave and very serious" requiring condign punishment.
I have not undertaken particularly or specifically to this point the task of assessing the objective gravity of the offending. The initial submission of counsel for the accused was that the first offences in time were at the lowest end of the range of objective seriousness. I cannot accept that. But it is to be fairly said that the particular offence charged against the accused in relation to the sexual assault upon the girl could cover a range of conduct, some of which was more serious than the conduct that he admits or is reflected in the agreed facts.
So far as AA and BB are concerned, some of the conduct, particularly that conduct of masturbating the victim and having the victim masturbate him, specifically in relation to AA, is serious conduct of its type relating to the indecent assault of a boy under the age of 16. I have taken into account in each case, the significance of the age of the child, BB particularly being only 10 years of age.
The last offence in time, whilst to be seen in context as not an isolated offence, involved an opportunistic act of sexual assault of a character that is not the most serious of its type, but to be regarded as a reflection of the prisoner's quite illegal sexual interest in young people. I should point out, as his counsel pointed out, that the prisoner's offences did not involve any threats of physical or other harm. But it is quite clear in each instance when he had the opportunity to commit a sexual assault he was able to do so without making threats and the like.
To be fair also to the objective facts, there were two occasions when both AA and BB indicated that they would not tolerate his conduct any further, BB's indication coming at the age of 10 was really an act of great courage on his part. If I could use the expression, "to the prisoner's credit", and it is very small credit indeed, the prisoner did not further pursue any sexual activity with the relevant child after the child had made it clear that he did not want to have anything more to do with the prisoner.
As I said, some time ago, all the matters that have been put to me by the parties have been taken into account and I trust that the principal matters raised with me have been addressed.
Thus, in the circumstances of the matter, Mr Lee I propose to make the sentencing orders. As I have indicated I should impose an aggregate sentence upon you. I will not ask you to stand.
The order I make is that in respect of all counts, which are set out below in their detail in the orders I make, taking into account the relevant matters on the Forms 1, you are convicted. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, I sentence you to an aggregate sentence of imprisonment comprising a non-parole period of three years imprisonment, to commence on 16 March 2018 and to expire on 15 March 2021, with a balance of sentence of four years six months to expire on 14 September 2025.
Indicative sentences of imprisonment are as follows: In relation to count 1 taking into account the matter on the Form 1, the indicative sentence is one year and eight months. In relation to count 2, an indecent assault on a person under the age of 16 years, the indicative sentence is a term of imprisonment of one year three months. In relation to count 3, an indecent assault upon a person under the age of 16 years, the indicative sentence is a term of imprisonment of one year eight months. In relation to count 4, an indecent assault on a person under the age of 16 years, taking into account the four matters on the Form 1, the indicative sentence I impose is three years imprisonment. In relation to count 5, taking into account the three matters on the Form 1, the indicative sentence of imprisonment is three years imprisonment. In relation to count 6, indecent assault upon a person under the age of 16 years, the indicative term of imprisonment is one year eight months. In relation to count 7, an indecent assault upon a person under the age of 16 years, the indicative term of imprisonment is one year six months. In relation to count 8, again another indecent assault upon a person under the age of 16 years, taking into account the two matters on the Form 1, the indicative term of imprisonment is three years imprisonment. In relation to count 9, taking into account the two matters on the Form 1, the indicative term of imprisonment, it being a count of indecent assault of a person under 16 years, is one year eight months imprisonment. In relation to count 10, being an indecent assault on a person under the age of 16 years, the indicative term of imprisonment is one year eight months imprisonment. In relation to count 11, an indecent assault upon a person under the age of six months (as said), the indicative term of imprisonment is one year eight months. In relation to count 12, being an aggravated indecent assault offence, the indicative sentence of imprisonment is two years one month.
I should point out in relation to each sentence indicated to be an indicative sentence, I have taken into account the respective gravity of the relevant offending. I have regard to the sequence of offending and the relevance of the prior undetected offending as it stands to consideration of the circumstances at the time of the offending.
Whilst I have indicated a percentage discount of 15%, some of the sentences I should indicate I have rounded down so as not to end up with an absurd situation of a sentencing involving years, months, weeks, and/or days. The rounding down has largely been in your favour as opposed to your detriment. Ultimately, in the context of those various indicative sentences, I have concluded that the totality of the criminality requires the fixing of the aggregate sentence that I have imposed. I have the details of those sentences made available to you madam Crown and ma'am when I leave the bench.
Thank you, Mr Lee. The gentleman from Corrective Services, Mr Lee has been sentenced to a total term of imprisonment of seven years six months, a non-parole period of three years. He is 81 years of age. He is physically infirmed to a degree. He has some cognitive deficiencies. He has some dementia. He has hearing difficulties. He has the need for medication and the like. I am telling you this even though it is all set out in my judgment, because you will obviously appreciate that when he is taken into custody, there will need to be some special arrangements made for his transportation and or his housing in the immediate future in order to assist him to the extent that of course Corrective Services can. Yes thank you gentlemen you will have to go with the officers Mr Lee thank you.
OFFENDER: Thanks very much.
HIS HONOUR: Thank you Ms Bateman very much for your assistance. Thank you madam Crown.
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Decision last updated: 09 May 2018