R v Myers

Background 3 The offences took place between 1995 and 5 December 1999. Four of the victims were brothers. The remaining victim was a friend of the youngest brother. The ages of the victims, at the time of each offence, varied between 11 years and 18 years. To preserve the anonymity of the victims I will refer to them by an initial. 4 Mr Myers met one brother (T) in 1993. By this means he got to know the family. He then formed a relationship with T's mother. In 1996, he moved in with the family. He became, in effect, a step-father to four of the victims. 5 The oldest brother (P) was born in 1979. The youngest (B) was born in December 1984. There were two brothers in between, T (1980) and K (1981). The friend of the youngest brother (S) was born in February 1985.

The Offences 6 The charges were grouped, according to victim. The first three counts related to one of the brothers, T, the second oldest (born 1980). The first offence occurred when T was 14 or 15. Both he and the applicant were staying in a flat belonging to the applicant's father. T was provided with alcohol by the applicant. During the night, the applicant called T to his bedroom. He was in bed, undressed, holding his penis. The applicant was then a man aged about 31. He asked T to join him in bed. T felt obliged to do so. The applicant then touched T's penis. He inserted his finger in T's anus. They then masturbated each other to ejaculation. 7 The charge was brought under s66C(1) of the Crimes Act 1900 (the Act). The maximum penalty under the section is 8 years. His Honour imposed a fixed term of imprisonment of 3 years, commencing on 22 May 2001. He declined to fix a non-parole period. 8 The second charge involved an incident which took place a short time after the first. At the same flat, each masturbated the other. T was then 14 or 15 years old. The offence charged was that of aggravated indecent assault (s61M(1) of the Act). The maximum penalty for that offence was 7 years. His Honour imposed a fixed term of 2 years. It was a concurrent sentence, commencing on the same date as count 1 (22 August 2001). No non-parole period was fixed. 9 The third charge concerned an offence under s78Q(1) of the Act. It alleged an act of gross indecency involving T and another brother, K. It took place at the applicant's work place, a factory. At the request of the applicant, T and K masturbated themselves in front of a video camera, which the applicant operated, the image appearing on a television screen. 10 The facts agreed acknowledged that these were not isolated incidents. The statement of facts included the following (substituting initials for the name which appeared): "Sexual contact between the accused and (T) involving masturbation took place on other occasions between the period of 1995 until towards the end of 1999. This activity took place at various houses at which the family resided and at the Rydalmere factory." 11 The maximum penalty under s78Q(1) was 2 years. His Honour imposed a fixed term of 1 year, concurrent, that is commencing on 22 August 2001. For the same reasons, his Honour declined to fix a non-parole period. 12 The next two charges related to the third brother, K, born in 1981. Count 4 alleged that, between November 1995 and July 1996, K was at the flat. Mr Myers took the victim to dinner at McDonalds. They went by car. Together they entered the garage at the premises. K got in the car. Soon after he did so, Mr Myers touched his penis. He then removed K's pants. He placed two fingers in K's anus. The applicant then masturbated himself and placed his penis against K. K was, at the time, 13 or 14 years old. 13 The charge in count 4 was of sexual intercourse with a child between the ages of 10 and 16 (s66C(1) of the Act). The maximum penalty was 8 years. His Honour imposed a fixed term of 3 years, concurrent with the term imposed in earlier counts. No non-parole period was fixed. 14 The fifth count was based upon the same incident as count 3. However, it related to the victim, K. It charged that, in May 1998, at a time when K was 16 years and his brother 17 years, the applicant induced the two brothers to masturbate in front of a video, the image being transmitted onto a screen. The charge was under s78Q(1) of the Act. The maximum penalty was 2 years. His Honour imposed a fixed term of 1 year, commencing on 22 August 2001, so that it was concurrent with terms previously imposed. 15 The sixth and seventh counts concerned the oldest brother, P. P, at the time of each incident, was 18 years old. Both counts charged indecent assault of P (s61L). Count six alleged that, in March 1998, P went to work for a few days with the applicant at a factory. The work involved staying overnight in the factory. P had a shower in the toilet block, using a makeshift shower connection. The applicant entered the block and showered next to P. In the course of doing so, he touched P's penis. The maximum penalty under the section is 5 years. His Honour imposed a fixed term of 2 years imprisonment, concurrent with the terms previously imposed. No non-parole period was set. 16 The seventh count involved an incident between April and October 1998. In the course of paying money to P, the applicant placed his hand and the money down P's trousers, touching his penis. His Honour imposed a fixed term of 2 years commencing on 22 August 2001. 17 The eighth and ninth counts concerned the youngest brother, B. The eighth count was the most serious. It occurred in 1996 at a time when Mr Myers had formed a relationship with B's mother. He had moved into the family home. He was, therefore, in a position of authority in relation to B. During a period that B's mother was absent from the house, and he was tucking B into bed, he pulled B's pants down. He touched him on the penis and then sucked his penis. 18 The maximum penalty for sexual intercourse with a child aged between 10 and 16 years is 8 years (s61C(1)). Where it occurs, as here, in circumstances where the perpetrator is also in a position of authority, the maximum penalty is increased to 10 years. His Honour imposed a term of 5 years. He made the term cumulative upon the longest of the fixed terms which he had imposed, that is, the terms of 3 years imposed concurrently in respect of counts 1 and 4. So the 5 year fixed term commenced on 22 August 2004. It expired on 21 August 2009. His Honour fixed a non-parole period of 2 years, expiring on 21 August 2006. 19 The ninth count related to an incident approximately three years later. It charged that, between 1 January 1999 and 7 December 1999, the applicant committed the crime of aggravated indecent assault (s61M(1)). The assault occurred on a camping trip with B and S, a young friend of B. B, by that time, was 15 years old. His friend, S, was 13 or 14. The applicant masturbated both B and S. They then masturbated him. 20 Again the statement of facts makes it plain that the conduct, so far as B was concerned, occurred on other occasions. The statement included the following: "Sexual contact between the accused and (B) involving masturbation took place on other occasions, at various houses at which the family resided and at the Rydalmere factory, between 1996 and 7 December 1999." 21 The maximum penalty under the section was 7 years. His Honour imposed a fixed term of imprisonment of 2-1/2 years, concurrent with the terms imposed in respect of counts other than count 8, that is, commencing from 22 August 2001. No non-parole period was fixed. 22 Counts 10 and 11 concerned the victim S, B's friend. Both counts were charges of aggravated indecent assault (s61M(1)). Count 10 related to an incident in the first half of 1998. S was staying the night at his friend's home. He was then 12 or 13 years old. The applicant came into the bedroom and touched S's penis. The applicant also got S to touch his, the applicant's, penis. His Honour imposed a fixed term of 2-1/2 years to commence on 22 August 2001. The term was, therefore concurrent with all counts other than count 8. No non-parole period was fixed. 23 The final charge, count 11, related to the camping trip described in relation to the offences committed against B (count 9). At the time of that incident S was 13 or 14 years old and his friend, B, 15 years old. 24 Again, the statement of facts makes it plain that the incident was not an isolated occurrence. The statement said this: "Sexual contact between the accused and (S) involving masturbation took place on other occasions between January 1998 and 7 December 1999."