R v Lincoln

District Court of NSW|2022-09-23

remarks on sentence

On 4 August 2022, the offender upon arraignment pleaded Not Guilty to four counts and two alternative counts (Counts 3 and 5) on the Indictment. On 18 August 2022, the jury brought in verdicts of Guilty to the following counts on the Indictment: 1. Count 1: That between 1 January 1972 and 3 May 1972, the accused assaulted LS who was then 9 years of age and at the time of the assault committed an act of indecency, namely, fellatio. This is an offence pursuant to s76 of the Crimes Act 1900. The maximum penalty for this offence is 5 years imprisonment. There is no standard non-parole period prescribed. 1. Count 4: That between 2 May 1975 and 3 May 1976, the accused raped LS in her parents' bedroom. This is an offence pursuant to s 63 of the Crimes Act 1900. The maximum penalty for this offence is life imprisonment. There is no standard non-parole period prescribed. 1. Count 6: That between 27 October 1969 and 1 January 1974 at C in the State of New South Wales, the accused assaulted GS, a male person, and at the time of the assault committed an act of indecency on GS. This is an offence pursuant to s 81 of the Crimes Act 1900. The maximum penalty for this offence is 5 years imprisonment. There is no standard non-parole period prescribed.

Sentence hearing

The sentence hearing took place on 3 February 2023. I find the following facts may be derived from the jury verdicts in respect of Counts 1, 4 and 6.
The offender met the victims' older brother, RS, through a Catholic Youth Organisation ("CYO") at C in the early 1970s and would visit his family home at C regularly. Count 1 involved the victim LS. On an occasion before her tenth birthday, when he was 18 to 19 years of age, she was taken by the offender in his car to his home at C. No one else was at home. There, she was taken to his bedroom and the offender said he wanted to show her something. She was sitting on his bed and the offender was standing in front of her. He unzipped his pants and said words to the effect of "Give me head" or "Suck my dick".
The victim could see his circumcised erect penis but did not know what he meant. The offender told her it was "quite normal for people to do this", that "it wouldn't hurt and that it was okay, because it was what boys and girls did."
The victim was distressed and crying and the offender said words to the effect, "Look, you know, you're gonna do what I want you to do" in a firm voice. He pressed his penis into her mouth for approximately ten minutes, during which he had his hands on her head and shoulder and was pressing her head onto his penis so that it choked her. He then ejaculated into her mouth.
Following the incident, the offender said to the victim LS, "You can't tell anyone" and that "This is between you and I, and you know, no one will believe you anyway. So, you know, you've got to keep this to yourself, or I'll make trouble for your family." The offender drove LS home and reiterated the importance of keeping what happened a secret.
Count 4 concerned an occasion when LS was 13 years of age, when the offender came to her home. There was no one else home and the offender took her to her parents' bedroom and flung her onto the bed. He closed the bedroom door and moved a dressing table towards the doors so that no one could enter. The victim was screaming "Please, not on my mother and father's bed. Anywhere else, but not here, please." The offender said, "No, it's gonna happen, it's gonna happen here and now" and then started to have penile to vagina sexual intercourse.
The victim was frantic and screaming, and a neighbour knocked on the door whilst this was happening. The offender put a pillow over the victim's head and pressed it down so no one could hear her screaming. The neighbour went away and the offender continued to have sexual intercourse while LS struggled under the full force of his body. He ejaculated inside the victim.
Count 6 concerned the victim GS. He was twelve years of age on an occasion when he and the offender went to a cubby house in the backyard of the victim's family home. The offender had asked to be shown the cubby house and when they went in, he put his arm around GS with quite a strong grip and held him very tight. He then put his hand down his pants inside his underwear and was fondling GS' penis and testicles.
The offender said to GS words to the effect of, "You know, like you're going to enjoy this" and "there's nothing wrong with this, it's purely healthy." The offender fondled GS' genitals for a couple of minutes, in a rigorous way, following which the offender said to GS "don't tell anyone about this".
The Crown sentence summary became Exhibit A in the sentence hearing. It contained a report from NSW Police which confirmed the offender had no convictions. It also contained Victim Impact Statements ("VIS") from LS and GS which were read by Ms M Fung in court on behalf of the victims.
Exhibit A also included a Sentencing Assessment Report ("SAR") under the hand of Ms A Cummings dated 17 October 2022. The report recorded the offender's family history. He and his former wife separated when his two daughters were very young and the children were left in his care. One of his daughter's died suddenly when she was 17 years old however he and his other daughter maintained a close and supportive relationship. She reported that whilst they have no extended family the offender has a wide circle of friends and acquaintances who continue to support him.
The author recorded that the offender was employed as a schoolteacher for over 42 years before he retired in 2015. He then worked as a casual tourist bus driver before fully retiring in 2020.
Under the heading, "Attitudes", the offender denied the offences stating that his entire adult life had been dedicated to raising his daughters and bettering the lives of the children he taught. He denied any attraction towards children, stating that his only interest had been in educating them and improving their lives. The author stated:- "He indicated he does not know why the victims have made the allegations they have and while he admitted that there may have been some "normal teenage horsing around" with the male victim he denied this was of a sexual nature."
The author stated that the offender demonstrated minimal insight into the impact that the offences may have had on the victims but indicated he would be willing to participate in interventions such as counselling if he was to be sentenced to a community-based order.
The offender was assessed as a low risk of reoffending and suitable to undertake community service work. A case note report from the Department of Corrective Services confirmed his assessment as being at a very low risk of reoffending which rendered him ineligible for CSNSW custody or community based sex offender programs.

The offender's evidence

Exhibit 1 is the report of Mr Woods, forensic psychologist, dated 2 February 2023. Mr Woods had interviewed the offender by AVL for approximately three and a half hours on 24 January 2023. Mr Woods took a history of the offender being adopted soon after birth into a hardworking and caring family. The offender continued to live with his adoptive parents until marrying in 1983 when he was 31 years.
Mr Woods took a personal history in which the offender reported being heavily involved in the St Mary's CYO throughout High School and still maintains some of those friendships today. The offender explained that this community shared similar values to himself and did not engage in sexual activities at that time or outside of marriage.
The offender reported that he enjoyed school and after completing the HSC he received a scholarship to study teaching, which he completed. The offender then went on to work as a teacher and very occasionally worked part-time as a tour bus driver. The offender further reported that he has been given an offer to resume this work as a tour bus driver once he is able to return to the workforce.
Mr Woods took a history in which the offender reported meeting his former wife in 1981 when she was 17 and he was 27. This marriage ended in separation in 2003, subsequent to the death of their first child. The offender reported that he has had only one short relationship since that separation but that broke down after 6 months and since then he has only focused on raising his daughter.
The offender reported that he had viewed some pornography involving consenting adults many years ago but that he found them "boring and artificial". He denied having engaged in any sexual fantasies involving the victims when masturbating or at any other time. Mr Woods noted that other than the index offending there was no evidence of sexual promiscuity or deviant behaviour.
Mr Woods noted that the offender had "some residual post-traumatic stress disorder symptoms secondary to the sudden death of his eldest daughter." But the offender advised that he had "come to terms with his daughter's passing". Notwithstanding the residual PTSD symptoms, Mr Woods noted "there is no evidence to suggest that Mr. Lincoln has currently or ever suffered from an active or prodromal symptoms suggestive of a mental illness."
The offender was assessed as at a very low to low risk of reoffending according to both STATIC-99R and STATIC-2002R tests. These test results are based on the period of time that has lapsed since the last offence was committed and the current age of the offender and expected age at time of release. Mr Woods opined that "age at the time of release is, under these circumstances, is a "primary consideration" when assessing the level of future risk of an individual who has committed a sex offence" as there is a reduced level of physical functioning.
Under the heading "Protective Factors", Mr Woods concluded that the following issues will protect against the offender's risk of reoffending:-

"He has strong family and social supports in the community.
He will have stable accommodation following release.
He has no history of mental illness.
He has no history of substance misuse.
He has no prior or subsequent criminal history.
He will, depending on his age at time of release, have the opportunity to resume employment and as such will be able to engage in meaningful activities.
Upon his release he is prepared to accept supervision and monitoring by a Community Corrections Officer."

Mr Woods acknowledged that due to the offender's assessment of being at a very low to low risk of reoffending he will not be able to participate in CUBIT and similar correctional-based sex offender programs however Mr Woods opines that Mr Lincoln would "benefit from the community-based sex-offender programs conducted by Community Corrections."
Mr Woods further opined that the offender's continuing denial of his guilt "relates to the likely consequences of admission of guilt in respect to offences that generally attracts widespread condemnation and potentially for Mr Lincoln, rejection by his daughter - his only surviving child."
Exhibit 2 is a document outlining the defendant's personal and vocational history including volunteer and charitable work.
Exhibit 3 was a character reference from the offender's daughter. She described her father as, "A well respected, trusted, and loved member of the community". She set out the family history including the death of her sister when aged 16 due to a pulmonary embolism. Following her parent's separation she was raised by her father in a way which she described as "beyond anything I could have ever asked for". She described the high regard in which he was held by colleagues in the teaching profession and his donation to a number of good causes and his volunteer work at Ronald McDonald House. Ms Lincoln also stated that the offender's sentence will not only have a significant impact on him but it will also have a very significant impact on her.
Exhibit 4 is a testimonial from Mr C A Wulff, a retired intelligence officer who has known the offender for 60 years. As young men they had a close personal relationship and Mr Wulff was aware of the offender's career as a teacher. He described him as a "kind, thoughtful, honest and caring person", and stated that he had never observed the offender to show any aberrant behaviour towards women or children. The offences do not accord with the character or personality of the offender as known to Mr Wulff.
Exhibit 5 is a testimonial from Ms V Boyd, a retired school principal who has known the offender for 17 years as a work colleague and personally. She described him as a dedicated teacher and well respected by staff, students and parents. She also described him as a wonderful friend, and "an extremely respectful and considerate man".
Exhibit 6 was a testimonial from Mr R W Collins, a retired senior manager in higher education. He stated that he had observed the offender over a large number of years to be a person of good character and described him as being "decent, respectful, caring and considerate of others". The offender had also been actively involved in community work and despite personal tragedies "has never lost his focus of giving of himself for the benefit of others".
Exhibit 7 is a testimonial from Ms C Collins who has known the offender for 58 years and who had a personal relationship with him for three and a half years in the late 1960s. She is a retired school teacher and described herself as being "stunned" when the offender was found guilty of the index offences, describing the actions as "completely out of character for the Paul that I know". She described him as a loving father to his daughter and as having "always been a popular, happy and joyful gentleman".

The Crown submissions

The Crown relied on a thorough and detailed written outline of submissions in which is set out factual findings to be derived from the evidence at trial in respect of each of Counts 1, 4 and 6 which are consistent with the factual findings that I have set out above. The Crown also set out the maximum penalties for each offence.
The Crown stated that the former s 76 of the Crimes Act encompassed a broad range of offending against a female under 16 years of age, ranging from what would now be regarded as sexual touching over clothing on the buttocks of a 15 year old female to offending which would now constitute sexual intercourse by penile penetration of the mouth of the female of tender years (which now carries a much higher maximum penalty of imprisonment i.e. 20 years).
The Crown submitted that the offending in Count 1 approached the high range of objective seriousness for an offence pursuant to s 76 of the Crimes Act. The Crown then submitted that the following aggravating features should be taken into account.

"LS being very young, sexually ignorant, and vulnerable as a result. (s 21A(2)(l));
The offending occurred within the home of the offender, after a seemingly innocent, but obviously-planned, invitation into his bedroom where she should have expected to be able to feel safe. (s 21A (2)(eb);
The offending resulted in substantial emotional harm to LS. (s 21A(2)(g)). This is substantiated by her evidence during the trial in stating that on her tenth birthday she was "sad" because "I had performed oral sex on the offender, so yes it was sad for me". The substantial and enduring emotional harm is confirmed by LS in her VIS. The harm is submitted to be beyond that ordinarily expected by conduct that now would constitute something more than the indecent assault of a female under 16.
The offending involved the use of physical violence by the offender's use of his hands to choke LS throughout the unprotected penetration with his penis;
The offender ejaculated into LS's mouth;
Whilst the offender was not in a particular recognized position of authority in relation to LS, there was a breach of trust between their otherwise cordial and comfortable relationship, as well as the trust provided by the S family in general;
The offending was accompanied by coercive language, telling LS that she was "gonna do what I want you to do", and followed by threats to her family should the offending be revealed."

The Crown submitted that the objective seriousness of the offending in Count 4, an offence against s 63 of the Crimes Act fell above the mid-range of objective seriousness for an offence of its type. The Crown relied on the following aggravating features in respect of this offence:-

"The offending involved actual physical violence as a result of LS being 'flung' onto her parent's bed, and by the forceful use of the pillow over her head to the point where she couldn't breathe. (s 21A(2)(b). The rape continued after interruption by the neighbour knocking and in circumstances of a struggle and clear protests by LS. The offender well-knew of the absence of consent evidenced by the violence perpetrated against his protesting victim.
The offence was committed in LS's family home where she was entitled to feel safe and secure. (s 21A(2)(eb)). The fact that the rape occurred in her parent's bedroom behind a door secured by the offender "devastated" LS and further aggravates the offending.
The emotional harm caused by the offence was substantial. (s 21A(2)(g). LS described screaming and being 'frantic' during this violent episode. She was particularly distressed by the location of the offending. LS felt "shame" about being the victim of the offender, and was 'terrified' in speaking out as he "had worn me down over time". The substantial harm suffered by LS is confirmed in her VIS.
LS was 13 years of age, and vulnerable as a result. (s 21A(2)(l).
The offending was not isolated given the indecent assaults that occurred some 3 years earlier;
The sexual intercourse was without protection in circumstances where the offender ejaculated in LS's vagina;
The offending was committed by the offender in the S family home in breach of the trust that provided to him."

The Crown submitted that the sexual penetration of a child must be considered more serious than an adult as recognised in RJ v R (2008) A Crim R 178 at [13]. Deterrence was important in the sentencing for child sexual offences. The Crown characterised the offending as, "A violent and forceful rape of a victim who protested and struggled and pleaded to be left alone".
The Crown submitted that the objective seriousness of the offending in Count 6 was within the middle of the range for an offence pursuant to s81 of the Crimes Act 1900. The Crown submitted the following were aggravating features of this offending:-

"The offending occurred in the sanctity of GS's home within the cubby house (s 21A(2)(eb);
GS was vulnerable, being only 12 years of age (s 21A(2)(l);"

The Crown submitted that the offender's lack of criminal history was a mitigating factor however he could not be described as a first offender when committing the offence in Count 4 as he had simply not been detected for the earlier offending.
The Crown submitted that pursuant to s 21A(5A) the court was prohibited from taking into account the offender's prior good character by virtue of it having been of assistance to him in committing the child sexual offences. The evidence at trial established that through the S children the offender had befriended the family and become a regular visitor to their household. He was known to be a trainee teacher and part of the CYO group and was particularly welcomed by Mrs S and had gained her trust. The Crown relied on the evidence of LS who had stated, "I had no reason not to trust what was happening. I was made to feel comfortable with him". The Crown submitted the offender's good character and lack of prior convictions assisted him in gaining the access he did to LS in taking her in his car to his house alone as a 9 year old girl to commit the offence in Count 1 and being invited as a regular guest at the family home where the other offending took place (Count 4).
The Crown acknowledged that the offender's lack of subsequent offending, and otherwise good character post-offence over an extended period of time was favourable to his prospects of rehabilitation and the assessment of any likelihood of him reoffending.
The Crown set out relevant principles pursuant to s 25AA of the CSPA for sentencing child sex offences in accordance with the sentencing patterns and practices at the time of sentence and not at the time of the offence. S 25AA(3) provides that the court must have regard to the trauma caused by the sexual abuse, relying on R v Cattell [2019] NSWCCA 297 per Price J at [121].
The Crown noted the pattern of increased sentencing for child sexual offences over the years. The Crown set out the purposes of sentencing reflected in the CSPA and submitted that the extended delay in sentencing for a period over 50 years is irrelevant to the assessment of objective gravity of the offending and was otherwise non-mitigatory in this case. The delay caused by LS reporting the matters to police or complaining to people close to her was consistent with the threatening and intimidating behaviour of the offender in ensuring his victim would remain silent. The reality was that the offender had escaped justice for decades and had enjoyed a life free from opprobrium or punishment for his crimes.
The Crown submitted that the only appropriate sentence was one of imprisonment and that there were no other possible sentence penalties. The Crown further submitted that if an aggregate sentence was imposed it should take into account the totality of the offending behaviour relying on Burgess v R [2019] NSWCCA 13 at [40].
The Crown conceded that the advancing age of the offender who is now 69 years, together with this being his first time in custody, was capable of constituting special circumstances pursuant to s 44(2B) of the CSPA. Any sentence should be backdated to 18 August 2022.

The offender's submissions

Learned King's Counsel for the offender submitted that the only possible basis for the application of s 21A(5A) for asserting that the good character of the offender might be of assistance in committing the offence was that he was a person of exemplary behaviour. He was 19-22 years at the time of the offending and it was submitted that there was nothing in s 21A(5A) or in general law which says that he shouldn't receive the full value of that good character. In answer to the Crown submission that the section applied involved him "having had an inter-family friendly and linked church associated with the family, they all depended on each other to do the right thing, implicitly". It was further suggested that no finding could be made that he groomed in any way either of the victims. Counsel submitted:- "Nor could it be suggested that he consciously set about, with some sort of plan, to ingratiate himself for the purpose of having any sexual offending against the children of the family. It is the fact that he took advantage… It's more propinquity."
It was submitted that it was the proximity of the offender to the two children arising from an innocent relationship characterised as an "admirable relationship" which resulted in him abusing the two victims and it was in that sense opportunistic.
Counsel noted that the Crown submitted that the fact that the offence in Count 4 was punishable by life imprisonment had some direct relevance to where the objective seriousness of the offending might be placed. It was submitted that that was not a matter to be taken into account. It was noted it was not a standard non-parole period matter but rather the non-parole period should be the least period of time he should serve following a finding of special circumstances based on his age, his exemplary record over the last 50 years, the fact that he was young person at the time of the commission of the offence and the fact that as a convicted paedophile he will be monitored whilst on parole.
Counsel referred to his extensive period of rehabilitation over the last 50 years as referred to in the report of Mr Woods and as a sex offender his parole would not be automatic. It was submitted that the offender should be regarded as a low risk of recidivism with a very high probability of never offending in any way again in his life. It was submitted, "Sometimes a denial actually points to an individual proclivity not to commit the offence" also, "for this kind of offence mere age is a well-known factor in minimising risk of offending."
It was submitted that any sentence must take into account rehabilitation and given his age, his loss of physical capacity. It was submitted that, "rehabilitation still runs very much in his favour".
With respect to the objective seriousness of the offending, it was submitted that Count 1 was not of itself a particularly serious example of an offence pursuant to s 76 of the Crimes Act. As an aggravating factor, the fact that it was committed in the home of the offender added little to the gravity of the offending. It was submitted that it did not appear to be a planned exercise to utilise his home for the purposes of a crime and it was opportunistic offending.
Counsel submitted that he was unable to dissect substantial emotional harm in relation to the offences in Counts 1 and 4 from the offence in Count 2 (and the alternative Count 3) which was yet to be prosecuted. The content of the VIS of LS had not been professionally assessed or corroborated and, relying on Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, the court could not make a finding beyond reasonable doubt of many things in the VIS which are said to be causative of subsequent events. The court would however find substantial harm.
In response to the Crown submission that the offending in Count 1 involved choking of the victim, it was submitted that "the concept of intentionally choking her would have been antithetical to the very actions he was seeking that she would perform".
The offender did not take issue with the aggravating features relied on by the Crown in respect of Count 4, being physical violence (s 21A(2)(b)), the fact that the offence was committed in her family home (s 21A(2)(eb)) and the emotional harm caused by the offence was substantial (s 21A(2)(g)). The offender did take issue with the Crown submission that LS was "terrified in speaking out as he had "worn me down over time"".
The offender further agreed that the offending was not isolated given the previous offending in Count 1 however the offences did not seem "to be particularly linked in terms of any connected series; they both appear to be opportunistic".
Nor did the offender dispute that the sexual penetration of a child must be considered more serious than an adult as submitted by the Crown, nor could there be any question that the offender knew at the time of sexual penetration LS's lack of consent.
The offender accepted that objectively Count 4 could be characterised as an objectively serious sexual assault on a minor.
With respect to the offending in Count 6, counsel accepted that the fact that the offending occurred in a cubby house in the backyard of the family home brought it within the aggravating circumstance envisaged in s 21A(2)(eb). It was offending of short duration.
Counsel for the offender did not take issue with the Crown submissions regarding s 25AA which provided that the court must sentence the offender in accordance with the sentencing patterns and practices at time of sentence, and not at the time of the offence.
In respect of the delay in prosecution, counsel submitted that the delay should not be taken into account adversely to him as though he had been "fleeing". In response to the Crown submission that the offender had enjoyed a life free from opprobrium by submitting:- "Whether he enjoyed it or whether he spent the entire time with feelings of guilt all night and every day, we simply don't know. That's, with respect, had it been reported at the time we do know he might have received a comparatively light penalty from which he would've been able to recover and enjoy life fully thereafter. That's one of the things that 25AA speaks against. It's simply an irrelevant consideration bearing in mind what 25AA says…"

Crown submissions in reply

The Crown rehearsed his submission that the offence pursuant to s 76 of the Crimes Act constituted objectively very serious offending. The Crown submitted that the submission made on behalf of the offender that the offending was opportunistic should be rejected. The evidence established that in respect of Count 1 the offender was 19 years old and he took the victim LS who was 9 years old in his car by themselves to an empty house and after entering went straight to the bedroom. It was submitted that this was anything but opportunistic.
The Crown characterised the sexual activity involved in Count 1 as in the words of the victim herself, "choking her".
In respect of the submission made on behalf of the offender that the Court did not know whether the offender had feelings of guilt every night for the last 46 years, it was submitted that the court does know as he maintains his denial of the offences to this day.

Determination

S 3A of the CSPA sets out the purposes of sentencing as follows:- "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community".
S 25AA(3) of the CSPA provides relevantly as follows:- "(3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts)."
It is not in dispute that the offences in Counts 1, 4 and 6 constitute child sexual offences as defined in s25AA(5) of the CSPA.
In R v Cattell (2019) 280 A Crim R 502; [2019] NSWCCA 297, Price J (with whom Hoeben CJ at CL and Campbell J agreed) said at [123]: "When fixing a sentence for an old child sexual offence which falls within s 25AA, a sentencing Judge should: (a) Take into account the sentencing pattern which exists at the time of sentence where such a pattern is able to be discerned; (b) Determine the facts as now available to the court; (c) Pay regard to the maximum penalty and the standard non-parole period (if any) that applied at the time of the offence; (d) Identify where the offence falls in the range of objective gravity of that offence; (e) Take into account any relevant aggravating factors and mitigating factors in s 21A(2) and (3) of the CSPA; (f) Set a non-parole period in accordance with s 44 of the CSPA as it operates at the time of sentence, and (g) Fix the balance of the term of the sentence."
The offending in Count 1 was objectively serious offending involving the offender who was 18-19 years of age taking the victim who was then aged 9 years by car to his home. She was taken to his bedroom where he demanded she fellate him when he exposed his erect penis. The offender attempted to induce her by saying it was "quite normal for people to do this" and that "It wouldn't hurt and that it was ok, because it was what boys and girls did." The victim was distressed and crying and the offender in a firm voice said, "Look, you know, you're gonna do what I want you to do" . He then pressed he penis into her mouth for approximately 10 minutes during which he placed his hands on her head and shoulder and was pressing her head onto his penis so that she felt it was choking her. He then ejaculated into her mouth.
I accept that s 76 of the Crimes Act covered a broad range of criminal activity however I reject the submission made on behalf of the offender that this was not of itself a particularly serious example of an offence pursuant to that section. Given the age difference between the offender and the victim, the coercion involved, the use of physical force and the fact that the offender ejaculated into the victim's mouth meant that the objective seriousness of the offence was in the high range of objective seriousness for an offence pursuant to s 76 of the Crimes Act.
The following are aggravating factors to be taken into account pursuant to s 21A(2):- 1. (2)(eb) - the offending occurred within the home of the offender where the victim should have expected to be able to feel safe; 2. (2)(g) - the offending resulted in substantial emotional harm to LS as confirmed in her VIS. I find beyond reasonable doubt that the harm suffered was beyond what would ordinarily be expected as a result of this offence. 3. (2)(l) - the victim LS was very young and vulnerable as a result.
The offending in Count 4 concerned an occasion when LS was 13 years of age when the offender came to her home. There was no one else at home and the offender took her to her parents' bedroom and despite the victim pleading with him the offender said, "No, it's gonna happen, it's gonna happen here and now" and proceeded to have penile-vaginal sexual intercourse with her. I find that the victim was frantic and screaming and the offender put a pillow over her head when a neighbour knocked on the door during the incident. After that person went away the offender continued to have sexual intercourse while LS struggled, and he ejaculated inside her. I find that the objective seriousness of the offending fell within the mid-range of objective seriousness for an offence pursuant to s 63 of the Crimes Act, and towards the upper end of the mid-range.
I further find that the following aggravating factors are to be taken into account in sentence for this offence pursuant to s 21A(2) as follows:- 1. (2)(b) - the offending involved actual physical violence involving LS being flung onto her parents and the forceful use by the offender of the pillow over her head. Further, the offending continued in circumstances of a struggle and clear protesting by LS. 2. (2)(eb) - the offence was committed in LS's family home where she was entitled to feel safe and secure. I accept the Crown's submission that the fact that the rape occurred in her parent's bedroom behind a door secured by the offender devastated LS and further aggravated the offending. 3. (2)(g) - I accept the emotional harm caused by the offence was substantial. The victim was frantic during the violent and forceful offending and distressed by its location. 4. (2)(l) - LS was 13 years of age and vulnerable as a result.
Although the offences in Counts 1 and 4 were not connected, the offending could not be characterised as isolated given the history outlined above. Further the sexual intercourse was without protection in circumstances where the offender ejaculated inside the victim. I do not find however that the offending was committed in breach of any trust provided to him by the victim's family.
The offending in Count 6 involved the victim GS who was 12 or 13 years of age. The offender asked to be shown the cubby house in the backyard of the family home and when they went in, he placed his arm around GS with a strong grip and held him tight. He then placed his hand down the pants of GS, inside his underwear and fondled GS' penis and testicles. The offender said to GS, "You know, like you're going to enjoy this" and "there's nothing wrong with this, it's purely healthy." The offending involved fondling of the genitals for a couple of minutes in a rigorous manner following which the offender told the victim, "Don't tell anyone about this". I find the objective seriousness of the offending fell in the low range for an offence pursuant to s 81 of the Crimes Act 1900 and in the middle of the low range. The following aggravating features should be taken into account pursuant to s 21A(2):- 1. (2)(eb) - the offending occurred in the sanctity of the family home within the cubby house. 2. (2)(l) - the victim was vulnerable being only 13 years of age.
I take into account the relative youth of the offender at the time of this offending almost 50 years ago. The courts have long recognised that adult males do not fully cognitively mature until their mid-twenties however this must be taken into account against the very serious nature of the offending.
S 21A(5A) provides as follows:- "(5A) Special rules for child sexual offences In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence."
There is no issue that the offender was a person of good character who had no criminal convictions at the time of the offending. The Crown relies on the above section to submit that his good character should not be taken into account as a mitigating factor pursuant to s 21A(5A). To so find, the court must be satisfied beyond reasonable doubt that the offender's good character was of assistance to him in the commission of the offences.
The Crown relies on the evidence at trial that established the offender became friendly with the family of the victims through his involvement in the CYO, as a friend of their older brother and that he became a regular visitor to the S family home. In Bhatia v R [2023] NSWCCA 12, the Court of Criminal Appeal held that in circumstances where the offender is a family friend, evidence must go beyond the fact of that relationship to establish that the commission of an offence was materially assisted by the offender's good character or reputation. Notwithstanding the victims' evidence at trial that the offender was a family friend, there was no evidence, for example from their parents who were predeceased, that there had been any assessment of his character or history and no other evidence which suggested that the offender actively used his good character or befriended the family to gain access to the victims.
On the basis of the evidence at trial I am not persuaded beyond reasonable doubt that s 21A(5A) applies so as to deprive the offender of relying upon his good character as a mitigating factor here. I further take into account the character evidence referred to above in finding that for a period of nearly 50 years since the offending the offender has led an exemplary life and accept his counsel's submission that that is a factor which is favourable to his prospects of rehabilitation and his assessment as being at a low risk of recidivism.
I accept the Crown submission that the delay in sentencing for a period of over 50 years is non-mitigatory in this case for the following reasons. First, any delay caused by the victims complaining to family members or reporting the matters to police was consistent with the threatening and intimidating behaviour of the offender in ensuring the victims would remain silent. Secondly, the offender was not left in a state of uncertainty but rather had escaped justice for decades and had enjoyed a life free from opprobrium or punishment for the offences. Thirdly, he has maintained his denial of the offences even following his conviction for them. This was not a case where the principle in R v Todd (1982) 2 NSWLR 517 applies due to the delay in prosecution. I accept the opinion of Mr Woods set out above that the offender's continuing denial of guilt relates to the likely consequences, namely, widespread condemnation and potential rejection by his daughter.
I have taken into account the VIS of both LS and GS. I accept that the psychological and emotional harm referred to therein must be confined to the harm caused by the offences in Counts 1, 4 and 6. The VIS of each victim is not supported by medical evidence, but they do comprise poignant examples of the impact of child sex offending on children of tender years which may, and have in this case, endured for a lifetime. I have not however taken the VIS of each victim into account in increasing the moral culpability for the offending.
I accept the submission made on behalf of the offender that the offending in each of the three counts was largely opportunistic. In respect of Count 1 however there must have been some planning involved given that the offender was able to take a 9 year old girl from her family home in his car to his empty home so as to commit the offence.
I have found that the offender has, as a result of his exemplary life over the last 50 years, good prospects of rehabilitation and a low risk of recidivism. I reject however the submission made on his behalf that "sometimes a denial actually points to an individual proclivity not to commit the offence" as being without an evidentiary basis.
General deterrence is important in sentencing for child sexual offending, and it is not in dispute that the sexual penetration of a child must be considered more serious than an adult. Further, it was conceded by the offender's counsel that he must have known in relation to Count 4 that at the time of the offence, the offender knew that LS did not consent to it. General deterrence is therefore important in the sentencing process as a clear message must be sent to likeminded members of the community that Parliament has prescribed lengthy periods of imprisonment as maximum penalties for child sex offending and the courts will impose condign punishment in appropriate cases. Specific deterrence is of diminished importance here, given the age of the offender and his lengthy period of rehabilitation since the offending took place.
In accordance with the prescription set out by Price J in R v Cattell above, I have taken into account the maximum penalty for each of the offences. For Count 1 the maximum penalty pursuant to s 76 of the Crimes Act is 5 years imprisonment. For Count 4, an offence pursuant to s 63 of the Crimes Act the maximum penalty is life imprisonment. For Count 6, an offence pursuant to s 81 of the Crimes Act the maximum penalty for that offence is 5 years imprisonment. There is no standard non-parole period prescribed for any of the three offences. I have taken the maximum penalties as outlined above into account as guideposts in the sentencing process. I have also taken into account current sentencing patterns for similar sexual offending where I have been able to discern it.
As set out above, the offender is entitled to rely on his good character as established in the testimonials referred to above, and his lifelong dedication as a teacher to the education and wellbeing of children under his care. These are significant subjective factors to be taken into account however I am mindful that such subjective factors must not allow inadequate weight to be given to the objective gravity of the offending in the sentencing synthesis - see Kearsley v R (2017) 265 A Crim R 233; [2017] NSWCCA 28 per Macfarlan JA at [14].
I propose to proceed by way of an aggregate sentence pursuant to s 53A of the CSPA. In doing so I take into account the objective seriousness of the offending for each offence, the aggravating and mitigating features outlined above including the good character of the offender. For the sake of transparency in the sentencing process, I am required to provide indicative sentences for each count, which I do as follows:- 1. Count 1 - offence pursuant to s 73 of the Crimes Act, 3 years imprisonment. 2. Count 4 - offence pursuant to s 63 of the Crimes Act, 8 years and 6 months imprisonment. 3. Count 6 - offence pursuant to s 81 of the Crimes Act, 12 months imprisonment.
In arriving at an aggregate sentence I am required to apply principles of totality and proportionality in sentencing. The principle of totality was described by Howie J in R v Cahyadi [2007] NSWCCA 1 at [27] as follows: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Having regard to the fact that there were two victims, and the three offences took place over a period of between three and four years, there must be some accumulation in sentence so as to reflect the totality of the criminality involved.
There is no dispute that a finding of special circumstances is available given that this is the offender's first time in custody, there has been some accumulation in sentence and because the COVID-19 pandemic has made conditions of custody more onerous in order to protect the whole of the prison population. I therefore find special circumstances are established pursuant to s44(2B) of the CSPA.
I intend to sentence the offender to an aggregate sentence of 10 years imprisonment with a non-parole period of 6 years imprisonment to commence on 18 August 2022 and to expire on 17 August 2028.

Orders

I hereby order as follows:- 1. You are convicted of the offence in Count 1, that between 1 January 1972 and 3 May 1972, you assaulted LS who was then 9 years of age and at the time of the assault committed an act of indecency, namely, fellatio, an offence pursuant to s 76 of the Crimes Act 1900. 2. You are convicted of the offence in Count 4, that between 2 May 1975 and 3 May 1976, you raped LS in her parents' bedroom, an offence pursuant to s 63 of the Crimes Act 1900. 3. You are convicted of the offence in Count 6, that between 27 October 1969 and 1 January 1974 at C in the State of New South Wales, you assaulted GS, a male person, and at the time of the assault committed an act of indecency on GS, an offence pursuant to s 81 of the Crimes Act 1900. 4. I sentence you by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 to a term of imprisonment of 10 years. 5. I sentence you to a non-parole period of 6 years imprisonment commencing on 18 August 2022 and terminating on 17 August 2028. The balance of term will be a period of 4 years commencing on 18 August 2028 and terminating on 17 August 2032. 6. Your parole eligibility date will be 17 August 2028. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2023

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