R v Nicholson

District Court of NSW|2018-08-03

Remarks on Sentence

The Victim was born on 29 May 1983. The Offender was born on 20 May 1948. In 1983, the Victim immigrated from Corsica as an infant with her parents, her brother, who was aged 6 at the time, and a 17 and a half year old half-sister.
In 1985, the Victim's family moved to house at Balmain. At around the same time, the Offender and his partner moved into the neighbouring residence.
The Victim's half-sister moved out of the family home around 1985. The Victim's parents separated when the Victim was about 5 years old.
The Plaintiff's mother opened a bakery in 1985 when the Victim was 2 years old. She worked at the business, mainly at night.
As neighbours, the Offender and his then partner were occasional visitors to the Victim's household for dinner, or to babysit the Victim and her brother when the Victim's mother was working at the bakery at night.
According to the Agreed Facts at around the time of the criminal conduct, the Offender placed the Victim on his lap while sitting at the Victim's family dining table. The Offender would stroke the Victim's leg and move his hand under the Victim's clothing.
Around 1987, the Offender and his partner moved from their home in Balmain to Paddington, but remained in contact with the Victim's family and occasionally, they visited each other.

Sequence 4 - Sexual Intercourse without consent with person under 10, between 1 January 1990 and 31 December 1990 - s 66A Crimes Act 1900

In 1990, the Victim's mother travelled to France for a week. The Victim was aged 6 or 7 years old. The Victim's mother arranged the Offender's partner to look after the Victim and her brother whilst she was away. One evening, whilst the Victim's mother was away, the Offender was at the Victim's family home in Balmain minding the Victim and her brother. The children were watching a movie on the television when an electrical blackout occurred during a storm. The Offender entered the lounge room and said to the Victim's brother "can you find some candles or a torch. I'll stay here with…" [the Victim]. The Victim's brother left the room, the Offender said to the Victim, "where are you?" The Victim replied, "I'm hiding, come find me." The Victim was next to the couch underneath a blanket. The Offender sat next to the Victim and starting rubbing the Victim's vagina on the outside of her underwear. As he did so, the Offender said, "this feels so nice." The Offender then put his fingers inside the Victim's vagina and started moving his fingers back and forth. The Offender continued for a few minutes while making groaning noises, until the Victim's brother returned to the lounge with some candles. The Offender jumped up and said "well done" to the Victim's brother and left the room. A short time later, the Offender returned and told the children that it was time for bed. The Victim shared a bedroom with her brother at the time. [2]
On 6 July 2015, the Victim contacted the Offender on his mobile phone. In a lawfully recorded telephone conversation, the Offender made a number of statements to the Victim including:- "a. "J, there are reasons but there are no excuses"; b. "it was affection, affection and closeness that… um was safe for me"; c. "After I left Suzie, we parted and so on, I came to my senses and I've been in therapy for some time and um all that is over… something that was just a brain snap and I've come to my senses"; d. "Suzie has told me some things… she told me some things that you'd said I've done and um I know what I didn't do." [3]
At 9:00am on 7 July 2015, Police attended the home address of the Offender and explained the allegations. The Offender declined to participate in a recorded interview with police. The Offender was issued with a Future Court Attendance Notice in relation to the offences before the Court.

Victim Impact Statement

The Victim addressed the Court by way of a victim impact statement. She advised of the circumstances in which she and her family came to Australia, and her mother commencing a business in 1985. Subsequent to that, she stated that her mother worked every night and she barely saw her for 15 years. The Offender was described as her mother's friend whom she trusted him to look after them. She stated that her mother would sleep during the day and she would send the children to day care and nights were often spent with the Offender and his partner. She stated that she did not get much attention from her mother and her parents in general and that the Offender used that as an opportunity. She stated that looking back, the secret that she and the Offender shared made her excited, but now she feels that her childhood was tarnished.
The Victim's relationships from the age of 16 were to use her words, "the beginning of a rollercoaster" and that she "was never able to have a stable relationship." She stated that she was tormented by a childhood memory of the Offender which made her desensitised to men. Consequently, she stated that she is a single mother of 13 years, due to this. She also blames the failure of her marriage on this. She states that she has no ability to trust men or trust herself and she is constantly weary of men cheating and then became the first one to cheat so as to have the upper hand. She was scared of hurting her mother and she described that her relationship with her had been strained immensely. She states that she informed her mother after she gave her statement to police in 2014 and it has been a mixture of guilt and a huge amount of anger on her part. She hated the fact that she was left with the Offender but understood what was involved in her being a single mother, working so her kids could have a good future, but to the detriment of her daughter. She described also telling a friend about the matter in detail when she turned 13.
The Victim stated that her relationships were based solely on sex and the feeling of love had no real meaning to her. She stated that she could not stop relating what had happened with the Offender with all the relationships she has been in to date and this has continued since she does not have the ability to change. In particular, when she gave birth to her daughter 5 years ago, she became distraught and was reminded of what had happened to her. She stated that she has never had a babysitter and never leaves her children in anyone's care, other than her mother, because of what had happened. As a result, her relationships were ruined, her trust in friends and family were also ruined, but she knows the children are safe. She states that she struggled with many issues; her anxiety and depression is also present, but she tries her best to keep them at bay.
The statement is a powerful reminder to this Court of the impact of the offending upon the Victim. The Court takes it into account in the way that the law provides. [4]

Count 1

The Crown submitted that the offence had the following salient features which put it above the mid-range for offending embraced by the section. [5] 1. Touching/rubbing of the genital area. It is submitted that this is particularly intrusive. 2. Accompanied by sexualized comments. 3. A significant age difference between the Offender and Victim. 4. The Victim was particularly young and vulnerable. This is exemplified by the fact that she was unable to resist the Offender even though other persons were present. 5. The circumstances of the offence indicate grooming behaviour. This is further confirmed by the reference to a special secret game. [6] 6. Although the duration of the conduct comprising the first offence is unclear, it was not fleeting. 7. There was no force used during the commission of the offence. However, the Crown submits that this was indicative of grooming and a breach of the trust the Offender was given. 8. The offence occurred in the home of the Victim an aggravating factor in accordance with 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the '1999 Act').
The Crown submitted that the Court would conclude that the conduct of the offence was serious and the victim was particularly vulnerable by reason of her youth and the fact that she was raised in a single parent household. The Offender was also a trusted visitor in the family home and abused that trust.
The Defence conceded that in the assessment of the objective seriousness of the offence it was relevant, that the victim was 4 or 5 years of age at the time and that the offence itself was not isolated.
The Defence noted that certain behaviours were embraced by the section which were not a feature of the present factual matrix such as; 1. direction of the Victim's attention to the Offender's penis by touching or otherwise; 2. masturbation; 3. ejaculation.
It was acknowledged that this offence had no qualification by age. The Defence ultimately conceded that the offence fell at or above the mid-range of offending.
In relation to Sequence 4, the Crown drew attention to the following features:- 1. Digital penetration utilizing more than one finger. 2. The duration of the assault was for a few minutes. 3. The Offender was in a position of trust and authority. This is clearly demonstrated by the directions he gave to the Victim's brother to locate candles and the direction to both children following the assault that it was time for bed. 4. The offence occurred in the context of grooming behaviour. The fact that the offence was preceded by a game should be seen as an extension of the 'special game ' referred to in the Agreed Facts at [14]. It was submitted that this explains the lack of force or coercion employed by the Offender. 5. The offence occurred in the home of the Victim. 6. The Victim was still quite young, even in the range of ages provided for by the offence. [7]
The Crown further submitted that it was an aggravating factor that the offence was committed in the Victim's home, in accordance with s 21A(2)(eb) of the 1999 Act. It was further submitted that the offence involved a breach of position of trust contrary to s 21A(2)(k) of the 1999 Act.
The Defence submitted that the following matters were relevant to the objective seriousness of the offence:- 1. The Victim was 6 or 7 years of age (noting that a victim can be no older than 9 years of age under this provision). 2. The offending conduct involved digital penetration but did not involve penetration of any other kind. 3. The offending conduct lasted a few minutes 4. The offending conduct occurred on one occasion only. 5. The offending conduct was not attended by any reference to the Offender's penis. [8]
The Defence submitted that whilst the offence has its context in the behaviour constituting Count 1, it remained the case that the offence was an isolated incident, as far as penetration of the Victim is concerned. Further, it drew attention to the fact that sexual assault at the time contemplated cunnilingus, fellatio, penile penetration, none of which were features of the present offending. Ultimately, it was submitted that this offence fell in the lower end of objective seriousness for offences of this type. The Defence took no issue with the Crown's submission as to the offence being aggravated under ss 21A(2)(eb) and 21A(2)(k) of the 1999 Act.

Assessment

The absence of a particular factor(s) which would otherwise elevate the seriousness of the offence is not a matter of mitigation. [9] As neither Sequence carries a standard non-parole period it is unnecessary to make a specific finding as to where the objective factors affecting the relative seriousness fall in relation to the middle-range of seriousness. [10] Nevertheless the range of conduct envisaged by the offences is a relevant consideration as to where each offence falls.
In Sequence 1 the victim was aged 4 turning 5. The vulnerability of the victim is implicit in her age in relation to the Offender. [11] The age difference between the victim and the Offender was some 35 years. The Crown accepted that there was no abuse of a position of trust for the purposes of s 21A(2)(k) of the 1999 Act. The offence occurred when the victim was in her home and was accompanied by sexualised comments. The touching/rubbing involved the genital area. Whilst the agreed facts indicate that there were other persons in the house at the time I am not satisfied that they were present in the room at the time the offence took place. The agreed facts do not specifically disclose otherwise. Moreover to draw such a conclusion would be inconsistent with the Victim's belief that they were playing a secret game. I accept that the incident was by its description not fleeting, although the agreed facts do not disclose its duration. I accept that in the circumstances it was opportunistic.
The fact that the offence was not isolated does not aggravate it but places it in its context.
I accept that Sequence 1 falls within the mid-range of the offending contemplated by the section.
I accept that Sequence 4 is aggravated in that it occurred in the Victim's home and involved a breach of a position of trust.
Before the intercourse occurred some sexualised comments were made when the Offender said "This feels nice" whilst rubbing the vagina on the outside of the underwear. The digital penetration involved the use of more than one finger, although the agreed facts also note that the Offender moved his fingers back and forth. The penetration was accompanied by groaning noises. The conduct ceased only after the Victim's brother returned with the candles. The precise duration is not disclosed. However from the description of events I am satisfied that it was not fleeting and lasted for a few minutes. I accept that it was opportunistic.
The victim being 6 or 7 years of age was older than she was in count 1. However this offence specifically relates to persons under the age of 10.
Overall, I would assess Sequence 4 as below the mid-range of offences contemplated by the section.

Background

In the Offender's case a report was tendered from Patrick Sheehan forensic psychologist dated 20 July 2018. [12]
According to that report the Offender is aged 70 born in New Zealand with one older sister. He described a positive family environment. It acknowledges that he was well cared for and there was structure, support boundaries and affection. He graduated from High School at 17 years and then studied a Bachelor of Graphic Design at Wellington Polytechnic which he completed over three years.
He moved from the family home at 18 years and lived independently. He described a consistent employment history including several publishing companies in New Zealand, United Kingdom and Australia and operated his own consultancy in Australia from 1984 managing his own business until late 2017.
The Offender maintains contact with his older sister in New Zealand. Both his parents are now deceased.
The report documents that the Offender had several long term relationships being: 1. A first marriage between 1980 and 1982 as a result of which he has son currently aged 36 years. The son currently lives in Calgary Canada and he visited him in 2016. 2. A brief relationship in his mid-thirties which led to an unplanned pregnancy. He had no contact with the daughter until four years ago when they met and forged a connection. The report records that the daughter has distanced herself since he advised her of these charges; 3. A subsequent relationship of five years duration having a son together, now aged 25 years. That relationship ended in 1990-1. 4. A current relationship commenced in 1992. The offender is noted to have described his relationship in positive terms and that they are emotionally close. His partner he describes as is in her late sixties and he has regular contact with her whilst in custody mainly by phone but also where possible by way of visit. The report notes that the offender has fully disclosed his offences to his partner and she remains supportive. The offender intends to live with her in their Paddington home after release.
In Mr Sheehan's report it was recorded that the Offender acknowledged a period of sexual attraction towards female children associated with a period of bitterness and grief from his first failed marriage. He is recorded as having stated that "I can recall a time when I thought that the younger they are the safer they are" (in terms of emotional rejection and deception). Mr Sheehan noted that this is a commonly observed factor in men who sexually offend against children. [13] Later in his report Mr Sheehan reports that Offender described a history of emotional collapse in his early to mid-thirties, secondary to a complicated and prolonged relationship failure. He experienced high levels of distress, desolation and suicidal thought. He is recorded as describing himself as being in a negative state of mind for nearly a decade and as a selfish horrible person. He is noted to have not have sought assistance at the time. [14] Whilst Mr Sheehan describes this as symptoms of a depressive disorder or adjustment disorder, he acknowledges that retrospective diagnoses are speculative and the description he gives are what "might be." [15]
In 2007 the Offender sought treatment form Dr Lindsay Both, Consultant Psychiatrist. The Offender was diagnosed at that time as having suffered Dysthymia or low grade depression and it was noted that there was a longstanding difficulty in working effectively as a graphic designer. Although some psychotherapy was prescribed the Offender was noted to be ambivalent in attendance.
The Offender was noted to have returned to Dr Both in 2010. Dr Both noted that the Offender has been prescribed an antidepressant by his GP and described relief from his feeling of depression and anxiety. [16]

Plea of Guilty

A plea of Guilty was entered on 19 February 2018 at the commencement of the third occasion where the matter was listed for trial. In the course of submissions, the Crown agreed with the Defence submission that the appropriate discount for the plea of guilty should be 10% in accordance with the principles in R v Thompson; R v Holton [17] and R v Borkowski. [18] I accept that this is so and I will proceed accordingly

Prior Offences

The Offender does not have any prior criminal history; a mitigating factor under s 21A(3)(e) of the 1999 Act.

Good Character

The Crown conceded that prior good character can be taken into account in relation to Sequence 1, not Sequence 4. [19] The Crown submitted that even in relation to Sequence 1, prior good character can only be taken into account in a qualified form, bearing in mind the context in which the offence was committed. [20] I accept that this is so.

Remorse

The Crown submitted that remorse is not to be found in the Offender's affidavit, psychiatric and psychological reports submitted on his behalf. It noted that no mention is made of it in the testimonials submitted on the Offender's behalf, [21] such that the Court should take a guarded view in this regard.
The Offender's counsel draws attention to the context of the intercepted phone call with the victim in which the Offender makes an outward expression of remorse. Attention was also drawn to the plea of guilty which has avoided the need for the Victim to give evidence.
In the report of Dr Lindsay Both, Consultant Psychiatrist, dated 17 July 2018, a history is given that the Offender has not talked about his offending with anyone since he committed them, and he tried not to think about it, but had been unsuccessful.
By contrast, in the report of Mr Patrick Sheehan, Psychologist, dated 20 July 2018, the history is obtained was as follows:- "He said, "I realise how wrong it was. I thought she might have trauma from what I did. I wonder what I could do to help. I wanted to make amends. In 1991 I told her mother what had happened. I knew there was a risk that she could tell the police. I've always had that in the back of my mind." [22]
The Offender is recorded as having stated that since that time, he has used self-monitoring to ensure that he would never slip back into similar behaviours. He is also recorded as stating that he had discussed this with a Psychiatrist in 2011, adding:- "I see the triggers. I acknowledge them. I see what I used to be intrigued by and know it was a lie. I will never hurt a child. Children are sacred. They need to be protected. I feel that more and more the older I get." [23]
In an affidavit of 3 August 2018, the Offender also states that he has discussed his offending to family and friends and is grateful for the support they have given.
I do not consider the question of remorse is necessarily to be assessed by whether or not the Offender told anyone about his offending after it occurred and before he was arrested. Dr Both's report records the reluctance of the Offender to earlier discuss the offending was for fear of it being made public and him losing his partner and him losing his work.
It is apparent from both the reports of Dr Both and Mr Sheehan that the Offender is remorseful and has accepted responsibility for his offending. In his affidavit of 3 August 2018, the Offender further states:- "I understand what I did will have a long-lasting impact on Ms Weaver. I sincerely hope that she is able to find some peace and closure." [24]
It is further apparent form the contents of the intercepted phone call recorded in the agreed facts.
The Offender has pleaded guilty avoiding the need for the victim to give evidence. [25]
Notwithstanding the need to exercise caution in reliance on untested statements [26] the evidence as a whole satisfies me that remorse is established for the purposes of s 23A(3)(i) of the 1999 Act.

Prospects of Rehabilitation & Likelihood of Reoffending

The Crown submitted that the Offender had some cognitive distortions which are relevant to the assessment of his prospects of rehabilitation and likelihood of reoffending. In particular, the Crown drew attention to Mr Sheehan's report which at [33] states:- "... However he does continue to use some language that seems to sanitise his perception of his motivation at the time of offending (which is a self-protective mechanism) and he may benefit from addressing this with a suitable clinician."
Attention was also drawn to Mr Sheehan's report at [20] where he states:- "In terms of paraphilic disorders, Mr Nicholson is at this stage able to acknowledge having lowered his sexual boundaries to permit himself to entertain sexual thoughts of children at the time of offending. He continues to use such terms such as "affection" and "closeness" to describe his motivation (consistent with the agreed facts). Given that his offences occurred when the victim was aged between four to seven years old (prepubescent) and were not isolated to one incident but occurring over a period of 2 years, the threshold for Pedophilic Disorder (non-exclusive, interest in females) would likely be technically met in this instance. However, this disorder in its classic form usually has an early onset and is persistent relapsing condition through the life span. I note that Mr Nicholson's sexual offending was limited to a brief period in his late thirties to early forties, during a period of low mood and has not recurred during the following 25-year period of community life. This does raised uncertainty as to whether the diagnosis would accurately describe Mr Nicholson."
The Defence draws attention to the fact that Mr Sheehan records that the Offender's totalled score on Static-99R was -2, placing him in the very low risk category relative to other male sexual offenders. It was further argued that consideration needs to be given to the 25 years that the Offender has resided in the community without any form of restriction or supervision since the offending. The Defence noted that rates of recidivism are known to reduce over time in the community without reoffence. [27] So far as dynamic factors are concerned, the factors most pertinent to the Offender relate to chronic self-focus and distorted perception of sexualised children's behaviour associated with the offences, although Mr Sheehan considered these to be historical factors present at the time of the offences, but not present at his current life stage. [28]
In conclusion, Mr Sheehan records:- "… He is at a low risk of sexual or other reoffending when measured against all empirically based risk assessment factors. As such, his treatment needs are minimal. He has made independent steps towards addressing his own risk over the years and these steps have been clearly effective. However, he does continue to use some language that seems to sanitise his perception at the time of the offending (which is a self-protective mechanism) and he may benefit from addressing this with a suitably experienced clinician. He may be suitable for a low intensity treatment program for Offenders whose risk and treatment needs are in the low category." [29]
Quite apart from the length of time that has elapsed without evidence of further offending, a number of testimonials have been presented from the Offender's partner and associates of the Offender whom have children. No concerns have been expressed in terms of the Offender's interactions. [30]
Overall notwithstanding the qualifications to which the Crown has drawn attention to, the Offender's expressions of remorse and the independent steps he has taken towards addressing the risk over the years and the support of his partner who provided a statement to the Court, satisfy me that he is at low risk of reoffending and he has good prospects of rehabilitation.

Application of Section 25AA of the 1999 Act - Submissions

Since the hearing of substantive sentence submissions on 3 August 2018, s 25AA of the 1999 Act has been enacted and proclaimed to commence on 31 August 2018. [31] That was the date that I was scheduled to deliver sentence.
On that occasion I informed the parties of the amendment and invited further submissions as to its application. Both parties furnished supplementary written submission and due to scheduling issues oral submissions were ultimately heard on 29 October 2018 at Campbelltown. Sentence was ultimately adjourned to 22 November 2018.
Section 25AA reads as follows: 25AA Sentencing for child sexual offences (1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. (2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing. (3) When sentencing an offender for a child sexual offence, 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). (4) This section does not affect section 19. (5) In this section: "child sexual offence" means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years: (a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900 , (b) an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act, (c) an offence of attempting to commit any offence referred to in paragraph (a) or (b), (d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c).
In its supplementary submission the Crown contended that the section applied to the Offender notwithstanding that he had entered his plea before the legislation was proclaimed and before submissions on sentence had substantively been completed. It argued that the words" at the time of sentencing should be given their ordinary meaning such that any relevant child sexual offence sentence is that imposed from 31 August 2018. To this end it was submitted that the absence of transitional provisions was telling and whilst Parliament could easily have made other provision for the provision not to apply where the plea had already been entered, or to matters where the sentence hearing had already commenced, it elected not to do so. Ultimately it was submitted that the provision did not have retrospective application but rather was prospective form the date of proclamation.
The Crown further submitted that s 30 of the Interpretation Act 1987 (NSW) could not apply as it related to amendment or repeal of Acts or statutory rules. Sentencing in accordance with principles that existed at the time of the offence was a sentencing principle but not enshrined in any Act or statutory rule that was being repealed by the introduction of s 25AA and was therefore not a right that has been acquired, accrued or incurred under an Act or statutory rule.
The Crown further submitted that the terms of s 25AA in itself sets out the express terms of its intention not to preserve such a "right."
The Defence argued that the "time of sentencing" is to be measured at the time that the plea was entered and accordingly s 25AA would not apply as it does not have retrospective application. It was submitted that the absence of transitional provisions was equally capable of lending itself to an alternative interpretation that the legislature could not sensibly have intended s 25AA to apply to persons who had already entered a plea of guilty under the rubric of a pre-existing sentencing regime (and indeed where the plea had been entered prior to the introduction of the relevant bill to Parliament). [32]
The Defence argued that from the time the offender entered his plea it became the statutory obligation of the District Court to sentence him in accordance with s 4(1) of the 1999 Act.
Section 30(1)(e) of the Interpretation Act 1987 (NSW) was said to preserve the pre-existing law in relation to the sentence proceedings. This was said to mean the sentencing practices current at the time of the offending. [33]

Application of Section 25AA of the 1999 Act - Determination

Section 25AA of the 1999 Act was enacted pursuant to the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW). It contains no transitional provisions whereas detailed savings and transitional provisions are provided in Schedule 2 of the 1999 Act for other provisions. [34] Moreover, s 2 of the 2018 Act [35] specifically provides that the Act commences on a day or days to be appointed by proclamation.
The 1999 Act must be read as a whole with the amending provision in its context. [36] That would command that the provision is to be given effect from proclamation such that there would be no basis for s 30 of the Interpretation Act 1987 (NSW) to apply.
As noted the Defence raised several matters going to asserted unfairness to the Offender such that that the immediate application of the section on proclamation could not have been intended. That argument to the extent that it has any force needs to be considered in the context of the legislative history.
Section 25AA of the 1999 Act was described by the Attorney General the Hon Mark Speakman SC, MP in the second reading speech delivered to the Legislative Assembly of NSW on 6 June 2018 in the following terms: Schedule 3 [6] inserts a new section 25A into the Act to implement one of the royal commission's key recommendations. This new section will require courts sentencing for historical offences to apply current sentencing practices and standards and our modern understanding of the trauma caused to children by sexual abuse. The purpose of this new provision is to override the current common law rule that a court must apply the sentencing standards from the time of the offence. In historical cases of child sexual abuse, this is resulting in lower sentences and discounts applied to reflect the leniency of sentencing for these offences in times past. This perpetuates our past lack of understanding of how seriously these offences should be treated and our past lack of understanding of the significant impact they have on the victim. The new provision will ensure that sentences meet current community expectations, to the extent possible within the upper limit of the maximum penalty from the time of the offence. (emphasis added)
The reference by the Attorney to the Royal Commission into Institutional Responses to Child Sexual Abuse sets the background to the mischief the legislature was seeking to address. The Executive Summary of the Commission Report stated: Sentencing standards in historical cases In most Australian jurisdictions, an offender is sentenced with reference to the sentencing standards that existed at the time of the offending, including in relation to the maximum penalty, non-parole period and the prevailing sentence lengths accepted by the courts at the time of offending. The use of historical sentencing standards is particularly relevant to matters of institutional child sexual abuse, which are often prosecuted many years, even decades, after the offending occurred. Applying historical sentencing standards can result in sentences that do not align with the criminality of the offence as currently understood. Applying historical sentencing standards can also be complicated. Australian jurisdictions generally sentence by applying historical sentencing standards. However, Victorian legislation directs the sentencing court to have regard to current sentencing practices, and South Australia provides for current sentencing standards to apply in cases of multiple or persistent child sexual abuse, regardless of when the offending occurred. England and Wales have implemented more substantial reform. While the statutory maximum penalty that applied at the time of the offence continues to apply, they otherwise sentence in accordance with the sentencing standards that apply at the time of sentencing. Some submissions expressed support for adopting the approach applying in England and Wales, while other submissions suggested that it would breach the principle against retrospectivity and may be unfair to the offender. We are satisfied that, provided the maximum penalty that applied at the time of the offence continues to apply, there is no unfairness in applying contemporary sentencing standards within that maximum penalty. We are also satisfied that this would not result in an offender receiving a higher penalty than the one that was applicable at the time when the offence was committed. We are satisfied that historical sentencing standards were in error, based on misunderstandings of the impact of child sexual abuse on victims. We also note that, where an offender is being sentenced for historical child sexual abuse offences, it is likely that that offender has benefitted from many years of living in freedom in the community - a benefit that may well not have been available if the offender had admitted to the offending and subjected themselves to the criminal justice system at the relevant time. We are satisfied that states and territories should legislate to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending, as now occurs in England and Wales. [37]
In both the report of the Royal Commission, and the remarks made in the second reading Parliamentary Debate, reference is made to the relevant sentencing law in England and Wales. [38] In those jurisdictions, guidance on the sentencing of historical sexual offences is codified by the Sentencing Council in Annexure B of the Definitive Guideline on Sexual Offences published in 2013. Annexure B provides: Approach to sentencing historical sexual offences When sentencing sexual offences under the Sexual Offences Act 1956, or other legislation pre-dating the 2003 Act, the court should apply the following principles: 1. The offender must be sentenced in accordance with the sentencing regime applicable at the date of sentence. Under the Criminal Justice Act 2003 the court must have regard to the statutory purposes of sentencing and must base the sentencing exercise on its assessment of the seriousness of the offence. (emphasis added) 2. The sentence is limited to the maximum sentence available at the date of the commission of the offence. If the maximum sentence has been reduced, the lower maximum will be applicable. 3. The court should have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003. 4. The seriousness of the offence, assessed by the culpability of the offender and the harm caused or intended, is the main consideration for the court. The court should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence. 5. When assessing the culpability of the offender, the court should have regard to relevant culpability factors set out in any applicable guideline. …
In Regina v Forbes, [39] the Court of Appeal of England and Wales further referred to Annexure B. Giving the judgment of the Court, Lord Thomas of Cwmgiedd CJ held: [8] It was submitted on behalf of the prosecution that the court should, after selecting the applicable current guideline, sentence in accordance with the guideline, capping the sentence, if required, by the maximum sentence provided by the legislation for the offence in question. We do not consider that the submission is consistent with R v H (J) or Annex B. A court should, in assessing the appropriate sentence in any case, have regard to the maximum sentence applicable to the offence and not simply apply in a mechanistic way guidelines premised on much higher maximum sentences. It is important to recall that under the provisions of the Coroners and Criminal Justice Act 2009 the duty of the court under section 125(1)(a)to follow the guidelines only applies to offences committed after the coming into force of the Act on 6 April 2010: see the commentary to the decision on R v H (J) at [2012] Crim LR 149, 157. [9] The phrase "have regard to" (which was intended to have the same meaning as "by measured reference to") was intended to make it clear that the judge should not simply apply the relevant guideline applicable at the date of sentence, subject to any lower statutory maximum sentence applicable at the date the offence was committed, but use the guideline in a measured and reflective manner to arrive at the appropriate sentence. [10] As Annex B makes clear, what is required is first the selection of the relevant guideline and then the determination of the sentence having regard to that guideline as adjusted by reference to the maximum sentence applicable to the offence charged. It is therefore important for the sentencing judge to guard against too mechanistic an approach, either in terms of an equivalent offence or in adopting the figures in the guideline without having regard to the fact that generally higher maxima are provided for some of the modern day offences. Whilst a judge should have regard to the current guidelines in this way, the judge should go no further and should not attempt, as the judge mistakenly did in Attorney General's Reference (No 27 of 2015) [2015] EWCA Crim 1538, to construct an alternative notional sentencing guideline.
The mechanism used in this State differs from that in England and Wales in that the former has a statutory requirement as opposed to a guideline. Nevertheless, both were directed to following the "sentence regime at the date of sentence" to use the Guideline expression, or "sentencing patterns and practices at the time of sentencing" to use the NSW expression. Although s 25AA speaks of "the time of sentence", whereas the guideline refers to "date of sentence", I see no relevant distinction and accept that the legislation must be given effect.
The next issue which arises goes to the effect of s 25AA. The Crown argued that both offences in this case are substantively similar to currently enacted offences that arise under division 10 of the Crimes Act being current s 61M(2) and s 66A. The Crown argued that in sentencing the Offender I should have regard to the penalties applicable to these offences as they now stand as part of the sentencing patterns and practices, but subject to what it described as the "jurisdictional" maximum penalties applicable at the time.
I do not accept that submission. It is not contemplated by the terms of section 25AA nor the background to its introduction as outlined above. A similar argument was rejected in Regina v Forbes. Beyond that I see the argument as contrary to s 19(1) of the 1999 Act.
The Defence drew attention to the review of past sentencing practices referred to by Beazley JA in Simpson v R. [40] However after doing so however, her Honour stated: [70] Each occasion of criminal offending is individual and unique in its circumstances. The court's task is to impose a sentence that reflects the objective criminality involved and which appropriately has regard to the personal circumstances of the offender. Regard must also be had to the other objectives of sentencing. The purposes of sentencing are now statutorily encoded in the Crimes (Sentencing Procedure) Act, s 3A which identifies the purposes for which a court may impose a sentence …..."
In sentencing the Offender, I acknowledge that the offences are historical and those offences and applicable maximum penalties are a feature of earlier times. The maximum penalty for Sequence 1 is four years and for Sequence 4 is twenty years. These maximum penalties are matters I have regard to as part of the process of instinctive synthesis.
Whilst I must have regard to the maximum penalties applicable at the time of the offending, the sentence must be proportionate but reflective of s 25AA of the 1999 Act, including having regard to the trauma of sexual abuse on children as understood at the time of sentencing. Recognising the harm done to the Victim is a required purpose of sentencing under s 3A(g) of the 1999 Act.
Having said that, the sentence also needs to provide for general deterrence. I accept that the Offender has a low likelihood of reoffending and specific deterrence and the need for rehabilitation carry less emphasis relatively. Nevertheless, the conduct needs to be denounced, the offender made accountable and the harm to the victim recognised. In my view, no sentence other than imprisonment would meet the purposes of sentencing set out in s 3A of the 1999 Act.
In considering the question of general deterrence, I bear in mind the comments of Hamill J In MC v R: [41] [57] ... There are some circumstances in which it has been held that a particular kind of Offender may be an "inappropriate vehicle" for sentences containing a large component of general deterrence. That includes children and young Offenders and Offenders who suffer from an intellectual disability or mental illness of some kind. Such a principle might also be invoked, albeit rarely these days, when offences are committed "on the spur of the moment, either in hot blood or in drink or both". However the fact that an Offender is elderly and infirm, along with the other subjective and mitigating circumstances that were established on the applicant's behalf, are not matters that generally lead to a diminution of the role of general deterrence."

Special Circumstances

The terms of s 44 of the 1999 Act require that the balance of term is not to exceed one third of the non-parole term for the sentence unless the Court decides that there are special circumstances.
The Probation and Parole Act 1983 (NSW) was in force from 28 February 1984 until 24 September 1989, such that there was no prescribed statutory ratio of parole to non-parole at the time of Sequence 1. The parties accepted that the imposition of non-parole period comprising between 35% and 50% of the head sentence tended to be imposed. [42]
At the time of Sequence 4, s 20A(2)(a) of the Probation and Parole (Serious Offenders) Amendment Act 1987 (NSW) provided that the non-parole period is to be at least three quarters of the sentence for that offence, although the Court could specify a shorter period pursuant to s 21(3) "but only if it determines that the circumstances justify that course."
In light of the terms of s 25AA of the 1999 Act the legislative arrangements and practices of the time of the offending would not support a finding of special circumstances on this basis.
Nevertheless, applying s 44(2) of the 1999 Act I accept that the offender has good prospects of rehabilitation and that he has a low likelihood of reoffending. He also has the continuing support of his partner and her family. These factors, combined with the fact that this is the Offender's time in custody, justify a finding of special circumstances.

Totality

The Offender is to be sentenced on the basis only of the offences before the Court, although they are not mitigated as being isolated events. [43]
The Offender came into custody on 19 February 2018 and has been in custody from that time. In these circumstances, I propose to commence the sentence from that date pursuant to s 47(1)(a) of the 1999 Act, as I will indicate below.
I have regard to the principles of accumulation concurrency and totality. Whilst noting the remarks in MC v R [44] and Denham v R [45] as to past practices the relevant approach is that set out by Beazely JA in Simpson v R, where Her Honour stated at [91]: The Court in Pearce stated the correct approach to sentencing. Her Honour was required to sentence in accordance with those principles. In any event, it is at least possible that the applicant would have been sentenced after Pearce was decided. Accordingly, to the extent that the cases relied upon all involved concurrent sentences, I consider that this Court is not bound to impose concurrent sentences. However, in re-sentencing the applicant, it will be appropriate to consider the total sentence imposed to determine whether the accumulation ordered by her Honour should be adjusted so as to impose a sentence which in its totality is appropriate, having regard to the range of sentences that applied at the time of the applicant's offending and so as to take account of the finding of special circumstances. This has resulted in a slight adjustment of the period of accumulation from that ordered by her Honour.
The agreed facts and the Crown submissions acknowledge common features in the offending.
The offender is convicted of each offence.
I propose to proceed by way of aggregate sentence.
For Sequence 1 but for the plea of guilty the indicative sentence would have been 1 year and four months imprisonment. In light of the plea the indicative sentence is 1 year and 2 months imprisonment.
For Sequence 4 but for the plea the indicative sentence would have been 4 years and 9 months imprisonment. In light of the plea the indicative sentence is 4 years and 3 months imprisonment.
Pursuant to s 53 A of the 1999 Act I impose an aggregate sentence taking account of the finding of special circumstances comprising: 1. a non-parole period of 2 years and 9 months to date from 19 February 2018 and to expire on 18 November 2020; and 2. an additional term during which the Offender shall be eligible to release on parole of 2 years from 19 November 2020 to 18 November 2022.
The aggregate sentence in total is 4 years and 9 months.
Subject to the decision of the State Parole Authority the Offender's earliest release date is 18 November 2020.

Endnotes

Statement of Agreed Facts, p. 2-Exhbit A.
Statement of Agreed Facts, p. 2-Exhbit A.
Statement of Agreed Facts, p. 3, Exhbit A.
s 28 of the Crimes (Sentencing Procedure) Act 1999 Act (NSW) ('the 1999 Act').
Outline of Crown Submissions on Sentence, p. 4 at [11].
Statement of Agreed Facts at [14], Exhibit A.
Outline of Crown Submissions on Sentence, pp. 4-5 at [13].
Outline of Submissions for Mr Nicholson, p. 6 at [17].
Saddler v R (2009) 194 A Crim R 452, [3]; and R v Woods (2009) 195 A Crim R 173.
Georgopoulos v R [2010] NSWCCA 246, [30]-[32]. See s 54A of the 1999 Act.
Vulnerability for the purposes of s 21A(2)(l) of the 1999 Act was not submitted.
Exhibit 1, tab 1.
Report of Patrick Sheehan, dated 20 July 2018 at [14] Exhibit 1 tab 1.
Report of Patrick Sheehan, dated 20 July 2018 at [18] Exhibit 1 tab 1.
Report of Patrick Sheehan, dated 20 July 2018 at [18] Exhibit 1 tab 1.
Report of Lindsay Both, dated 17 July 2018 Exhibit 1 tab 2.
[2000] 49 NSWLR 383.
[2009] NSWCCA 102. See also s 21(3)(k) and 22A of the 1999 Act.
S 21A(3) (a) of the 1999 Act.
R v PGM (2008) 187 A Crim R 152, [43]-[44].
Exhibit 1 tab 4.
Report of Patrick Sheehan, dated 20 July 2018 at [23]. Exhibit 1 tab 1.
Report of Patrick Sheehan, dated 20 July 2018 at [23]. Exhibit 1 tab 1.
Affidavit of Bruce Nicholson, dated 3 August 2018 at [3], Exhibit 1, tab 3.
R v Borkowski [2009] NSWCCA 102, [32] principle 3.
Imbornone v R [2017] NSWCCA 144.
Report of Patrick Sheehan, dated 20 July 2018 at [29] Exhibit 1 tab 1
Report of Patrick Sheehan, dated 20 July 2018 at [31] Exhibit 1 tab 1
Report of Patrick Sheehan, dated 20 July 2018 at [33] Exhibit 1 tab 1
Exhibit 1 tab 4.
The commencement proclamation was signed 29 August 2018 (2018 No 490)
Reliance was placed on X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92, [96] (Hayne and Bell JJ citing approval of the principle stated by O'Connor J in Potter v Minahan [1908] HCA 83; 7 CLR 277, 304: "It is in the improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness".
R v MJR [2002] NSWCCA 129; PWB v R [2011] NSWCCA 84.
DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th Edition, Lexis Nexus Butterworths 2014) [4.12]-[4.13].
Hereinafter the 2018 Act
K and S Lake City Freighters Pty Ltd v Gordon and Gotch [1985] HCA 48; (1985) 157 CLR 309, 315 (Mason J).
Royal Commission into Institutional Responses to Child Sexual Abuse-Criminal Justice Report, Executive Summary, 101.
New South Wales, Parliamentary Debates, Legislative Assembly, 20 June 2018 (Paul Lynch); Royal Commission into Institutional Responses to Child Sexual Abuse-Criminal Justice Report, Executive Summary, 101.
[2016] EWCA Crim 1388.
[2012] NSWCCA 246; (2012) 227 A Crim R 299 (with Hall and Campbell JJ agreeing).
[2017] NSWCCA 316 (with whom Simpson JA and Rothman J agreed).
Denham v The Queen [2016] NSWCCA 309; MPB v R [2013] NSWCCA 213; Mottram v R [2009] NSWCCA 210, [41]-[42]; AJB v R [2007] NSWCCA 51, [39]; PWB v R [2011] NSWCCA 84, [64].
Baines v R [2016] NSWCCA 132, [5]-[7] (Basten JA with whom Rothman J and Fagan J agreed).
[2017] NSWCCA 316, [44].
[2016] NSWCCA 309, [111].

Amendments 27 November 2018 - Case removed from cases cited as it was not in the judgement 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: 27 November 2018

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018(NSW)

Probation and Parole Act 1983(NSW)

Probation and Parole (Serious Offenders) Amendment Act 1987(NSW)s 20A

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