R v O'Toole

District Court of NSW|2020-12-11|Before: Ms J

REMARKS ON SENTENCE

On 17 July 2020, following a judge alone trial that took place between 16 June 2020 and 9 July 2020, the offender was found guilty of the following offences: Count 1 - assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Count 2 - assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Count 3 - assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Count 4 - carnal knowledge of CW, a girl then under the age of 10 years, pursuant to s 67 of the Crimes Act 1900. The maximum penalty for the offence was life imprisonment. Count 5 - assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Count 6 - maintain an unlawful sexual relationship with KW, a child under the age of 16 years, pursuant to s 66EA(1) of the Crimes Act 1900. The maximum penalty for the offence was life imprisonment. Count 20 - assault female and commit act of indecency on LW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Count 21 - assault female and commit act of indecency on CF, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Statutory alternative to Count 22 - assault female and commit act of indecency on CF, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Count 23 - assault female and commit act of indecency on CF, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Count 24 - Assault WW, a male person, and commit act of indecency on him, pursuant to s 81 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Count 25 - Assault WW, a male person, and commit act of indecency on him, pursuant to s 81 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Count 26 - Assault WW, a male person, and commit act of indecency on him, pursuant to s 81 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Count 27 - procure an act of indecency with WW, a male person, pursuant to s 81A of the Crimes Act 1900. The maximum penalty for the offence was 2 years imprisonment. Count 34 - assault female and commit act of indecency on AA, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. The maximum penalty for the offence was 5 years imprisonment. Count 35 - Carnal knowledge of AA, a girl then of or above the age of 10 years and under the age of 16 years, pursuant to s 71 of the Crimes Act 1900. The maximum penalty for the offence was 10 years imprisonment. Count 36 - Carnal knowledge of AA, a girl then of or above the age of 10 years and under the age of 16 years, pursuant to s 71 of the Crimes Act 1900. The maximum penalty for the offence was 10 years imprisonment.

The sentence hearing

The Crown Sentence Summary became Ex A. It included my judgment on verdict delivered on 17 July 2020, and a criminal history which revealed that the offender, who was born on 15 November 1945, had no criminal convictions.
A fair summary of the offending in respect of each of the victims is as follows.

Offences involving CW - Counts 1 -5

CW was the youngest child of the W family who lived on a dairy farm adjacent to the BPS. She commenced going to school in the third term of 1965 when she turned five, and continued at the school until it closed at the end of 1967. Count 1 on the Indictment concerned an incident that occurred during school hours when she was asked by the offender to help clean the boys' toilet, which was situated a distance of between 80 and 140 metres away from the classroom building. CW was in the toilet with the offender and was standing on the toilet seat. The offender pulled down her shorts and underpants and took his penis out of the fly of his pants. He touched her vagina with his fingers and then rubbed his penis himself until it was erect. That constituted the offence in Count 1. He then started moving his erect penis between her legs, moving it in and out until a white liquid went over her thighs and legs. She did not know what the white fluid was and the offender told her: "This white liquid is called spunk. You should be happy you can make me do this." That was the evidence that constituted Count 2 on the Indictment. He told CW that it was a secret, that she was very special and that she should not tell anybody about it.
CW was born in September 1960 and she was aged between five and seven years at the time of this offending.
Count 3 occurred after school had finished for the day. The offender told the victim that she could stay and play at school with the walkie-talkie radios and told her to go to the storeroom adjacent to the classroom to get those radios. He told her he would be able to drive her home rather than her walking home. The offender told the victim that before they could play with the radios, he wanted to play a game. He pulled the blind down on the window of the storeroom and shut the door. He got out a blue raffia mat and told CW to take off her shorts and underpants and lay on her back. The offender then knelt over her on his hands and knees. He forced her legs open with his knees and lowered himself down on top of her. He then moved up and down on top of her with his penis between the tops of her legs and moved his penis to her vagina. She felt his penis hard and erect on her.
Count 4, an offence of carnal knowledge of CW pursuant to s 67 of the Crimes Act 1900, occurred when the offender lowered himself on top of the victim and rubbed his penis in her vagina, and penetrated her vagina. This caused the victim discomfort in her vagina and she felt uncomfortable. The offender ejaculated. He was laying on top of her and said: "If I did this to one of the other girls, like Jenny, she would probably fall pregnant." The offender then got off CW, told her to put her pants back on, and to go outside. He then closed the school up and told CW that he had to go in the other direction and that she would have to walk home.
Count 5 occurred on another occasion when the offender and CW were alone in the storeroom. On this occasion the victim was on her back and the offender was on top of her, rubbing his body against her. He was not wearing his trousers and there was skin-on-skin contact with his penis and CW's body.
Counts 1, 2, 3 and 5 were offences pursuant to s 76 of the Crimes Act 1900 of assault female and commit act of indecency.

Offences involving KW - Count 6

KW was the older sister of CW and was born in September 1957. She was aged between eight and 10 years during the time the offender taught at BPS. The offender was found guilty of Count 6, an offence pursuant to s 66EA(1) of the Crimes Act 1900, that he maintained an unlawful sexual relationship with KW, a child under the age of 16 years.
As her teacher, the offender maintained an unlawful sexual relationship with KW, in which he engaged in two or more unlawful acts. Those acts included masturbating the offender (alternative Counts 7 and 9), putting his penis between KW's legs and moving it back and forth in the area of her vagina (alternative Count 8), having KW perform fellatio on him (alternative Count 10), and placing his hand on her vagina whilst swimming (alternative Count 16). The unlawful sexual relationship the offender had with KW was maintained over a substantial period of time whilst he boarded with the W family and taught at the BPS. The offender committed the unlawful sexual acts at the school, in his bedroom at the W home, and at the river on the W family farm. He also made numerous references to "mummies and daddies" when assaulting her, thereby causing KW to think she was in a relationship with him, where he was teaching her how to be a mummy, and he was pretending to be a daddy.

Offence involving LW - Count 20

The offence in Count 20 involved the victim LW, who was born in February 1959. She was six or seven years of age when the offender became her teacher at BPS. Count 20 involved an occasion when LW was asked to help the offender and they took some equipment to the male toilet. The offender sat her down on the toilet and placed the broom handle between her legs and moved it back and forth, whilst lifting up the broom. She was wearing a dress with underpants on and could feel the broom rubbing against her vagina. The offender then put the broom aside and grabbed her around the waist and pulled her onto his lap and put her on one of his legs so that she was sitting sideways on his leg, with both her legs between his legs. He then grabbed one of LW's hands and pulled it towards his groin. His zipper was down and his penis was partially exposed and was erect. He put her hand onto his penis and tried to get her to pull his penis all the way out of his pants and hold it. The offender was breathing heavily and said to her if she touched his penis she would pass her exams. LW kept pulling her hand away and he would push it against his penis, but eventually he gave up and LW stood up. They then proceeded to clean the boys' toilet and the girls' toilet. This was an offence of assault female and commit act of indecency pursuant to s 76 of the Crimes Act 1900.

Offence involving CF - Count 21, alternative statutory Count 22, and Count 23

The victim in Count 21, CF, was born in December 1959. She commenced at the BPS in 1966 at the age of six. Count 21 involved the offender closing the classroom door when all of the other children were outside. He showed CF a number of pictures on a projector, and while he did this, he put his hand around CF's waist, pulling her closer to him. He then moved his hand up her dress and inside her underwear and rubbed her on the vagina.
The statutory alternative to Count 22 involved the offender moving CF onto his lap and putting his legs either side of her. He unzipped his pants and tried to kiss her on the mouth, but she pulled her head away. He then put his hand between her legs and pulled her underpants to one side. He tried to kiss her on the mouth and he ejaculated between her legs. This alternative statutory count was an offence of assault female and commit act of indecency on CF, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900.
At the time of this offence, the offender said to CF: "This is our secret. If you tell someone, I will find you and kill you." He also said to her: "You are my favourite. If you tell anyone, I'll make you repeat school."
Count 23 was an offence on another occasion when CF asked if she could go to the toilet during class. The offender walked her to the girls' toilet and when they got there, he went inside with her, unzipped his pants and pulled out his penis. He told CF to touch his penis and took her hand and put it onto his penis. She pulled away and wet herself, because she was scared. She bent down and hit her head on the end of his penis. The offender then left and said to her: "Don't tell anyone, or you'll get into trouble."

Offences involving WW - Counts 24, 25 and 26

WW was born in August 1953. He was in high school when the offender came to live with his family. He was interested in the offender's radios and spent time with the offender when he was not at school. The offence in Count 24 involved an occasion when WW went with the offender to the BPS on a weekend. The offender offered WW a chocolate bar with nuts in it. When they were in the classroom, the offender sat on a desk and pulled his penis out from his pants. It was erect and shortly after WW had eaten the chocolate bar, the offender put his penis into WW's mouth and made WW move in front of him whilst he was sitting at the desk. This conduct constituted Count 24.
The offender complained that WW's mouth was gritty on his penis because of the nuts. WW, having swallowed the remaining nuts, then continued to fellate the offender, which act constituted Count 25.
The offender then asked WW to remove his pants, and the offender removed his. They lay on the floor with WW on his back and the offender rubbed Vaseline between WW's thighs. The offender then got on top of WW and rubbed his erect penis back and forth between the upper legs of WW. This conduct constituted the offence in Count 26. Each of the offences in Counts 24, 25 and 26 constituted an assault on a male person and committing an act of indecency on him pursuant to s 81 of the Crimes Act 1900.
On another occasion, WW was given chocolate by the offender. The offender asked WW to take his pants off and the offender already had his pants off. The offender wanted WW to put his penis into the offender's anus and move it back and forth. The offender laid on the floor on his stomach and WW got on top of him. WW then put his penis between the offender's bottom cheeks. This constituted Count 27, an offence of procure an act of indecency with WW, a male person, pursuant to s 81A of the Crimes Act 1900.

Offences involving AA - Counts 34, 35 and 36

The offending in which AA was the victim occurred after the offender had left BPS. He then worked at another country school for one year before moving to PHPS, a suburban school in the city. He obtained accommodation as a boarder at the home owned by AA's mother, her father having recently passed away. AA was born in October 1957. She was between 10 and 12 years of age when the offender moved into her home and she was a student at the school at which he taught, but not in his class.
The offence in Count 34 occurred on an occasion when AA was in the garage of her home. The offender came into the garage and said to her: "This won't hurt but bend over and open your legs." She did what she was told and bent over. The offender started to pull her pants and underpants down. The offender was behind her and pushed one of his hands around her anus. This was an offence of assault female and commit act of indecency on a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900.
The offender then penetrated AA's vagina with his penis from behind, moving back and forth. It felt uncomfortable and then her vagina felt wet. This was the offence of carnal knowledge of a girl then of or above the age of 10 years and under the age of 16 years, pursuant to s 71 of the Crimes Act 1900, in Count 35.
Count 36 involved the offender then saying to the victim AA: "Would you lie on the floor for me and let me go again?" AA then lay on the wooden floor on her back and took her underpants and pants down so they were off one leg. The offender lay on top of her and grabbed her hips with both hands. He then penetrated her vagina with his penis and she felt her body rubbing up and down on the wooden floor while he did this. She could feel the area around her vagina was still very wet and she could see some blood. She then saw the offender get dressed. This was an offence of carnal knowledge of AA, a girl then of or above the age of 10 years and under the age of 16 years, pursuant to s 71 of the Crimes Act 1900.
Exhibit B comprised the four Victim Impact Statements of CW, KW, CF and AA (Exs B1 to B4). Exhibits B1, B3 and B4 were read in court by the victims. Each of the Victim Impact Statements are referred to below.

Offender's evidence on sentence

Exhibit 1 was a report from Mr T Watson-Munro dated 4 December 2020. Mr Watson-Munro was qualified with the Crown Case Statement and assessed the offender over three days using telehealth facilities.
Mr Watson-Munro took a social history. The offender had been an only child and was educated in Newcastle. After completing the leaving certificate, he attended teacher's college and obtained a teacher's certificate, thereafter commencing work in primary schools on the Central Coast.
The offender was conscripted into the army for service in Vietnam, but was rejected on health grounds. He was appointed as the single teacher at BPS, where he remained for one year and two terms, before the school closed due to declining numbers. Thereafter he spent one year at another country school before being transferred to PHPS, where he taught for several years.
The offender reported that he held an amateur radio licence since 1963. He spent 25 years at his last school and was an assistant principal. He retired in about 2002 and thereafter established a radio museum at Kurrajong where he lived with his wife of 50 years. They have three adult children and the offender described a positive, supportive and loving relationship with all family members.
Psychometric testing was consistent with a depressive disorder. He was also assessed for sexual violence risk. The offender denied any paraphilic tendencies and stated that his sexual orientation was directed towards consensual hetro-sexual interaction, and he specifically denied any sexual interest in children.
Mr Watson-Munro opined that psychometric evaluation failed to reveal anything abnormal about the offender. He further opined that the risk of him re-offending in the same manner is low, on the basis of an absence of offending since the late 1960's, his career as a school teacher, his strong connection with his family, and abstinence of substance abuse involving alcohol or illicit drugs.

The Crown submissions on sentence

The Crown relied on a detailed written outline of submissions. The Crown submitted that the offender was aged 20 to 22 when at BPS and aged 23 and 24 when he committed the offences against AA. He is now aged 75 years. His victims range between five years and 13 years of age, and the offences were committed between 1966 and 1970.
The Crown submitted that this was an appropriate case for the imposition of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). Further, s 25AA of that Act applied, and the court must sentence the offender in accordance with sentencing patterns and practices at the time of the sentence and must have regard to the current understanding of the traumatic effect of child sexual abuse on children.
The Crown relied on R v Cattell [2019] NSWCCA 297, which informs the proper application of s 25AA per Price J at [123] to [126].
The Crown also referred to well-known principles regarding sexual offending against children which are not in dispute. They include general deterrence, denunciation and protection of the community as important sentencing principles, that sexual offences against children are objectively serious and cause significant harm to the victims.
In relation to the victims CW, KW, LW and CF, the Crown submitted that the offending constituted an abuse of trust as it arose out of the special relationship of trust the offender had with the victims as their teacher. Over an 18 months period, he abused approximately one-third of the students entrusted into his care. As a sole teacher, he was the only authority figure at BPS and thus the pupils in his care were particularly vulnerable as they had no other staff to confide in or seek protection with. The risk of detection was also low. The impunity with which the offender was able to act was reflected in the fact that, notwithstanding that the victims were related, they were unaware that their siblings had been abused until years later.
In respect of the victims CW, KW and WW, the offender boarded at their family home and his conduct breached the trust of the victims' parents in allowing him into their home and to have contact and access to their children after school hours as a boarder, and also taught some of the family children, this amounted to a special relationship of trust which he abused, relying on Suleman v R [2009] NSWCCA 70 at [22], and Cowling v R [2015] NSWCCA 213 at [10] to [12].
In respect of AA, the Crown submitted the offending was a breach of her mother's trust, as he was a boarder in her home, as well a breach of the victim's trust. The Crown submitted that the breach of trust in respect of Counts 35 and 36 was an aggravating factor.
The Crown submitted that the offender groomed all of the victims in order to facilitate his offending. The grooming behaviour included the use of bribes or rewards such as treats of lollies, chocolate and ice-cream, special attention, tutoring, alteration of results and being chosen to assist their teacher at school.
The Crown made detailed submissions in respect of each victim which may be summarised as follows.
CW was a young child who had just started school. The offender was in a special relationship of trust with her as her teacher and also as a boarder in her family home. He groomed her at school and used threats, bullying and silence to ensure her compliance and to avoid detection. At the time of the offending in Counts 1 and 2, CW was five, six or seven, when the age range for an offence pursuant to s 76 was under 16 years. CW was therefore very much at the younger range for that offence. The Crown submitted that the offending in Count 1 was within the mid-range of objective seriousness, and Count 2 was above mid-range of objective seriousness.
Counts 3 and 4 occurred after school when there was no one else at the school. In respect of Count 3, CW was substantially younger than 16 years and in respect of Count 4, she was still considerably younger than 10 years. The Crown submitted that Count 3 was in the mid-range of objective seriousness, as was Count 4. The close proximity and timing of each offence justified a substantial degree of concurrency, however, partial accumulation was necessary so as to reflect the two types of criminal conduct.
The Crown submitted that the objective seriousness of Count 5 was above the mid-range, taking into account CW's age, the offender's position of trust, the use of the school storeroom, and the act involved.
The Crown referred to evidence at trial that established these offences were not isolated incidents, and that CW made no disclosure to her parents at the time because the offender gave her a feeling of being special. It was submitted that the attitude of the offender towards her increased the emotional and psychological damage caused by the sexual misconduct the offender perpetrated on her. The court would be satisfied that CW had suffered substantial harm and that s 21A(2)(g) of the CSPA applied. Whilst caution must be exercised in making such a finding relying on a Victim Impact Statement, the Crown submitted here, that the harm articulated by CW was causally connected to the criminal conduct of the offender.
In relation to the victim KW, the offending, pursuant to s 66EA, occurred when KW was eight, nine or 10 years. The sexual relationship the offender maintained with KW, encapsulated grooming behaviour which resulted in her being compliant and willing to please the offender. The Crown referred to the numerous references the offender made to "mummies and daddies" when he was assaulting her.
The Crown rehearsed the detail of the individual offences, together with the grooming aspect of the relationship which included the use of rewards, bribes and veiled threats. The sexual acts committed upon KW included getting her to masturbate his penis, putting his penis between her legs and moving it back and forth in the area of her vagina, getting her to perform fellatio and placing his hand on her vagina. These offences occurred at school, in his bedroom at her home and at the river on the family farm.
The Crown submitted the offending was aggravated by sometimes being committed in her home (s 21A(2)(eb)) and the breaches of trust as her teacher and as a boarder in her home (s 21A(2)(k)). Further, the act of fellatio included ejaculation into the mouth of the victim and the relationship exploited the innocence and ignorance of KW. The Crown submitted that the offending was gravely serious and above the mid-range of objective seriousness for an offence pursuant to s 66EA(1).
In respect of Count 20, the victim LW was seven or eight years old. She was also groomed and was selected by the offender to help him clean the toilets, giving rise to the offending in Count 20. He told her that if she pulled his penis out and played with it, he would pass her in the exams that were coming up. Although the offender did not succeed in getting LW to play with his penis, the Crown submitted the conduct was nonetheless serious, given the sexualised play by the teacher in a school toilet.
In respect of Count 21 and the statutory alternative to Count 22, the victim CF was six or seven years at the time of the offending. Count 21 involved the offender putting his hand between her legs and rubbing her vagina. The Crown submitted this was above the mid-range of objective seriousness for an offence pursuant to s 76. The statutory alternative to Count 22, also involved an offence pursuant to s 76. It involved the offender's penis touching CF's genital area as he ejaculated into her underpants. This also was above mid-range of objective seriousness for an offence pursuant to s 76, having regard to CF's age, the nature of the act, the location in the classroom, and the abuse of trust as her teacher.
In respect of Count 23, this occurred on another occasion when CF asked to leave the classroom to go to the toilet and the offender accompanied her. Inside the toilet, the offender unzipped his pants and tried to grab CF's hand to touch his penis. As CF leant forward, she accidentally hit the end of his penis with her head. She wet herself and the offender left. The Crown submitted that the offending fell in the mid-range of objective seriousness for an offence pursuant to s 76 of the Crimes Act. The Crown further submitted that the court would be satisfied beyond reasonable doubt that the harm to CF was substantial, based on the evidence in the trial and her Victim Impact Statement.
In respect of the victim WW, Counts 24 and 25 occurred on an occasion where the offender took WW to BPS on a weekend and gave him chocolates with nuts in them. Count 24 involved the offender placing his penis in the mouth of the victim. After WW swallowed the nuts, the offender put his penis back into WW's mouth (Count 25). The Crown submitted that given WW's age, the position of trust and the nature of the conduct, the objective seriousness of the offending on both counts was above mid-range.
On the same occasion, the offender then asked WW to remove his pants, and the offender removed his. The offender rubbed Vaseline between WW's thighs and got on top of WW and rubbed his erect penis back and forth between the upper legs of WW. This conduct constituted the offence in Count 26 and the Crown submitted the objective seriousness of the offending was above mid-range for an offence pursuant to s 81 of the Crimes Act.
On another occasion, the offender asked WW to take his pants off and the offender already had his pants off. The offender laid on the floor on his stomach and WW put his penis between the offender's bottom cheeks. This was the offence in Count 27, which the Crown submitted was above mid-range of objective seriousness for an offence pursuant to s 81A of the Crimes Act.
AA's father died when she was 10 years old and she lived at home with her mother and brother. The offender was a teacher at her school and moved into the home as a boarder. He groomed her by offering treats. AA was born in October 1957 and was aged 11, 12 or 13 at the time of the offences in Counts 34, 35 and 36. They occurred on an occasion when AA was in the garage making a bow. The offender came in and told her to bend over and take her pants down. He was behind AA and rubbed his finger around her anus. This was the offence in Count 34, an offence pursuant to s 76 of the Crimes Act 1900. The Crown submitted that conduct was in the mid-range of objective seriousness for an offence under that section.
The offender then put his penis into AA's vagina. This constituted Count 35, an offence pursuant to s 71 of the Crimes Act 1900. He then asked her to lie on the floor of the garage and open up her legs. He told her to bring her legs up and then pushed his penis in and out of AA's vagina. This constituted Count 36, an offence pursuant to s 71 of the Crimes Act 1900. The Crown submitted that the conduct in both Counts 35 and 36 was above the mid‑range of objective seriousness for offences pursuant to s 71.
The Crown submitted that the offending was aggravated by the following: 1. Being committed in her home - s 21A(2)(eb) 2. Breach of trust as a boarder in her home and a teacher at her school - s 21A(2)(k) 3. Causing the victim substantial harm - s 21A(2)(g).
The Crown noted that the assessment of harm to AA was complicated by the loss of her own father at a relatively young age. Nonetheless, the Crown submitted that AA had suffered significantly and substantially as a result of the offending in Counts 35 and 36.
The Crown submitted that the offender had used his good character as a teacher to gain the trust of all of the victims he taught, and in the case of the W children and AA, the trust of their respective parents and mother. The Crown submitted that s 21(5A) of the CSPA applied and an express finding should be made that the offender's good character was of assistance to him in committing the offences.
On the question of delay, the Crown noted that the offences were first reported to the Royal Commission into Institutional Responses to Child Abuse. CW and AA independently reported the offender to that commission, and CW did so in 2013. There was a delay in investigation because of an illness suffered by CW, and CF was living in Perth. The investigating officer also had a large workload. Statements were obtained from CW in July 2016, LW in July 2017, and CF in the same month. KW made her first statement in September 2017, and WW made a statement in January 2018. AA made her first statement in March 2018. This statement was made completely independently and in the absence of any knowledge of the separate allegations by students at the BPS.
The offender was arrested and charged in July 2017 in relation to the victims CW, LW and LF. He was subsequently charged in relation to the victims KW, WW and AA.
The offender was committed for trial on 28 February 2019. The matter was listed at Coffs Harbour for judge alone trial on 20 April 2020, but was adjourned because of the COVID-19 pandemic. The venue was changed and the judge alone trial commenced on 16 June 2020.
The Crown identified two types of delay, namely delay in offences being reported (in this case 48 to 49 years), and secondly, delay in investigation and prosecution of the matter (some six years).
In respect of delay in the offences being reported, the Crown relied on a number of authorities including Hornhardt v R [2017] NSWCCA 186, Wilson V R [2017] NSWCCA 41, Magnussen v R [2013] NSWCCA 50, and R v Cattell, supra, to submit that where an offender's criminality remained undetected for almost 50 years when lack of detection is directly related to the nature of the offending, resulted in an offender escaping justice for decades and enjoying a life free from opprobrium or punishment for his crimes. Such delay did not sound in mitigation of sentence, and the well established principle in R v Todd (1982) 2 NSWLR 517 does not apply.
As to the delay in investigation and prosecution, the Crown relied on R v Blanco [1999] NSWCCA 121, where Wood CJ at CL explained that delay may be taken into account on sentencing where an offender is left in a state of uncertain suspense, has demonstrated progress towards rehabilitation in the intervening period, and because a sentence for a stale crime calls for a measure of understanding and flexibility of approach. It is clearly highly desirable that prosecuting authorities act promptly where they have evidence of serious criminality.
The Crown submitted that the age of the offender at the time of the offences, namely 20 to 24 years old, was relevant in sentencing. However, the significant age difference between the offender and his victims, and the breach of trust, were countervailing considerations. The Crown further submitted that the fact that the offender had no criminal convictions in the long intervening period was relevant to a favourable assessment of likelihood of him re-offending and his prospects of rehabilitation.
At the sentence hearing, the parties were given an opportunity to submit further written submissions in respect of sentencing in relation to Count 6, the offence pursuant to s 66EA(1) of the Crimes Act 1900, where the victim was KW. In her further written submission, the Crown noted s 66EA(8), which provided that the court must take into account the maximum penalty for the unlawful sexual acts engaged in by the offender during the unlawful sexual relationship. In the case of KW, all of the acts were offences pursuant to s 76 of the Crimes Act, and had a maximum penalty of 5 years imprisonment.
The Crown referred to Burr v R [2020] NSWCCA 282, and the comparison made by Johnson J at [103] and [104] to the s 66EA offence as enacted in 1998, with the nature of the offence under the section following amendment in 2018.
The Crown noted that at present there has been no appellant consideration of s 66EA as enacted in 2018, although a number of sentences have been imposed under that section in the District Court.
The Crown submitted that the second reading speech made it clear that the offence was based on a similar offence in Queensland, being s 299B of the Criminal Code 1899 (Qld). The leading Queensland authority was R v SAG (2004) 147 A Crim R 301. In that case, Jerrard JA stated at [19]: "Significant matters substantially increasing a sentence for an offence of maintaining a sexual relationship included:

The young age of the child when the relationship thereafter maintained first began;
A lengthy period for which that relationship continued;
If penile rape occurred during the course of that relationship;
If there was unlawful carnal knowledge of the victim;
If so, whether that was over a prolonged period;
If the victim bore a child to the offender;
If there had been a parental or protective relationship;
If the offender was being dealt with for offences against more than one child victim;
If there had been actual physical violence used by the offender;
And if not, whether there was evidence of emotional blackmail or other manipulation of the victims."

The Crown submitted that the above principles must be read in conjunction with the provisions of the CSPA and relevant New South Wales sentencing principles. The Crown noted the observation in Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46, that there is no hierarchy of the physical types of sexual intercourse that determines the seriousness of the offending.
Here, the sexual acts committed upon KW included, getting her to masturbate his penis, putting his penis between her legs and moving it back and forth in the area of her vagina, getting her to perform fellatio and placing his hand on her vagina. The Crown submitted that the court would also be satisfied that the offender digitally penetrated KW on occasions. The court would also have regard to other evidence given by KW that there were other acts involving the offender, but her memory was less distinct about them. This included an incident when swimming in the river on the family farm where he pressed his erect penis against her back and would put his hands into her swimsuit, around her vagina. Further, at times he would ask her to put her hand into his swimsuit to hold and massage his penis, or he would put his penis between her legs under the water.
The Crown further submitted that the court would be satisfied that the offender ejaculated on or near KW when engaging in the unlawful sexual relationship, including during fellatio. For the majority of the period the offender was at the BPS, KW was nine years old. The Crown submitted that KW was a young child for the type of sexual acts that were perpetrated. Whilst there were no acts of penile penetration of her vagina, there was simulated intercourse and fellatio that included ejaculation into her mouth. The offender was 21 years for the majority of the period he was at BPS, and although relatively young, he was an adult in authority over KW. The difference in their age, life experience and authority, was substantial.
The Crown submitted that the seriousness of the offending was increased because of the extent of access the offender had to KW in that period as a teacher at her school, and a boarder in her home. KW was not safe from the grooming and opportunistic sexual predation of the offender at school, in her home, or on the family farm. The Crown noted KW had little opportunity to be anywhere else. Further, when asked about the first time the offender committed sexual acts upon her, KW gave evidence that she was in a confused state, but that she was being instructed to do things by a teacher, "so I must do what he tells me to do".
The Crown submitted that although there was an absence of violence, there was a high degree of manipulation of KW to enable the offender to commit the criminal acts to secure her silence.
The Crown further submitted in relation to matters raised in mitigation, that the offender's relative youth at the time of the offending was relevant. He was aged 20 to 22 at the BPS, and 23 to 25 in relation to AA's offences. There was no evidence of remorse, given the not guilty pleas and the absence of any other evidence. The Crown submitted there was no evidence of hardship in custody suffered by the offender, but did not oppose a finding of special circumstances if the court considered it appropriate, given it was the offender's first time in custody and his age at the time of entering custody, namely 74 years.

The oral submissions of the Crown

In her oral submissions, the Crown submitted in relation to Count 6, where the victim was KW, the court would be satisfied to the requisite standard that there were other acts apart from those identified in the judgment on verdict. The Crown referred to evidence given by KW of digital penetration on a number of occasions, together with occasions when the offender had KW touch and massage his penis. The Crown submitted that the offending in Count 6 fell within the mid-range or just above the mid-range for an offence pursuant to s 66EA(1).
The Crown rehearsed her submissions of the breach of trust involved in the offending. The offender was both a boarder in the homes of the victims, and a teacher of the victims at the BPS, as well as being a teacher at the school of AA. This combination meant that the parents had confidence and trust in him to exercise a degree of authority over the children. The children saw him as a figure of authority at the school and at home, relying on Suleman v R, supra.
The Crown submitted that this was an appropriate case for an aggregate sentence pursuant to s 53A and the application of the principle of totality. The Crown also rehearsed her submissions in respect of the age of the offender, and submitted that any sentence should reflect a substantial part of the rest of the offender's life.

Submissions on behalf of the offender

Counsel for the offender relied on a short written outline of argument, in which the offender did not concede mid-range offending conduct in respect of any of the offences. Further, breach of trust, as an aggravating feature, beyond the question of age, was not conceded in respect of those offences committed outside from the relationship of teacher and pupil. This meant that it would not be an aggravating feature in the offences raised in the context of residential boarding, relating to KW and AA.
The offender conceded that the s 5 threshold had been crossed and that accumulation was appropriate in sentencing in respect of each victim.
The offender submitted that a finding of special circumstances should be made in light of this was the first time in custody for the offender, that there was to be accumulation as to individual victims, and given the age of the offender.
It was submitted that specific deterrence was of minimal if any relevance to the sentencing task here, and a mitigating factor was the age of the offender at the times material to sexual misconduct.
The following submission was made in respect of the retrospective operation of s 66EA - "Notional general deterrence only as to like-minded persons in the 1960's - principal emphasis on punishment, retribution and legal condemnation - relevance in the sentencing task to the age of the offender at times material to the sexual misconduct - mitigation in circumstances concerning a 50 year period of no offending and good character".
In his oral submissions, counsel for the offender acknowledged the seriousness of the offending conduct. The subject circumstances of the offender were that he was aged between 21 and 24 years at the time of the offending. He was a single male teacher at BPS in a one teacher school.
It was submitted that the history given to Mr Watson-Munro in Ex 1 may be accepted by the court. At age 20, the offender had lost his father, leading to a dislocation of familial paternal and employment contexts in his life. Before being appointed to the BPS, he had been conscripted into the army which led to some anxiety. He was discharged prior to active service, but then appointed to the BPS, a position of some isolation. He had made considerable changes over 50 years. His relative isolation at the BPS was the genesis of his interest in radios, giving him connectedness through technology.
It was submitted that he had had 50 years of pro-social conduct with no aspect of re-offending and in fact no re-offending at all. It was submitted that the offender did not present at all as a classic offender, namely intractable and a recidivist. Rather, he had 50 years of married life and had demonstrated an absence of the usual indicia of paraphilic conditions. It was submitted that this goes to his subjective circumstances at the time of the offending.
It was further submitted that whilst he had expressed no remorse or contrition, specific deterrence was of diminished significance in the sentencing process here. The offender's criminal conduct was characterised as opportunistic and did not reflect an underlying disposition, but the circumstance of isolation that he found himself in.
Counsel submitted that in respect of the criminality involved in Count 6, the s 66EA offence, it would be erroneous to take into account the context evidence led at trial. The offender was to be sentenced for one offence only pursuant to s 66EA.
It was further submitted that the mid-range of objective seriousness for the offences was not a narrow band. In respect of the offences pursuant to s 76 of assault female and commit act of indecency, it was submitted that the section involved "elasticity" of offending conduct. As an example, it was submitted that the offence in Count 20 involving the victim LW, was well below mid-range.
In respect of Count 6, it was submitted that the acts that constituted the unlawful sexual relationship here, meant that a finding should be made that the offending fell just below mid-range.
Counsel submitted that a distinction should be drawn between the relationship between the offender boarding with the victims' families and a formal teacher/pupil relationship, and to that extent he disagreed with the Crown submission on breach of trust and authority. It was conceded that age is within the aggravating factors for offences pursuant to s 76.
Counsel submitted that in relation to mitigating factors, there was sufficient evidence that a finding could be made, on the balance of probabilities, that the offender's criminal conduct was referrable to his own circumstances and age. He is now aged 75 years and the court should consider a sentence that would be short of a life sentence. There was a marked lack of any need for specific deterrence, given the long intervening period during which he had been employed as a teacher which had yielded no further sexual misconduct. Further, delay had been caused by the investigation process, including some significant delay because of the nature of the matters, leading to a delay of three years.
Counsel for the offender also filed a further written submission in respect of Count 6, the offence pursuant to s 66EA, of maintaining an unlawful relationship with the child KW. Counsel submitted that age of the victim was a relevant consideration and that the offending was aggravated by a breach of trust arising from the student/teacher relationship. The offender was aged between 22 and 23 years at the time of the offending, and it was submitted that his pronounced youth remained an important consideration in the sentencing task, notwithstanding the offending conduct occurred over 50 years ago.
Counsel submitted that care was required to avoid double counting so as to increase the objective criminality of the KW offences. It was submitted the maximum penalty of life imprisonment could not be applied retrospectively so as to increase the sentence "unless and until the nature of the prescribed relationship is found, beyond reasonable doubt, to increase the objective criminality beyond the aggravated form within the indecent assaults per se".
Counsel rehearsed his submission in relation to the intervening period of 50 years with no further offending conduct.
It was submitted that it was inevitable that a degree of partial accumulation will attach to the offending conduct to recognise individual victims and the courses of conduct relevant to each of them. It was submitted that care should be exercised in the application of the principle of totality so as to not aggravate the predatory nature of the offending by an amplification of objective criminality inter-complainant, thus increasing the criminality relating to individual victims.
Counsel submitted that s 66EA is a tool available to the prosecution where a threshold of overall criminality is reached in the Directors' assessment. He submitted, "the facilitation of the high standard of proof required, particularly where pronounced historicity is apparent, running with the multiplicity of offending acts in short temporal compass, are important factors giving s 66EA work to do". It was submitted that if proved, a conviction pursuant to s 66EA renders an outcome other than full-time custody as "exceedingly rare".
Counsel rehearsed his submissions concerning the age of the offender and time remaining to him in terms of life expectancy. It was submitted that general deterrence, punishment and retribution were able to be accommodated by a custodial sentence in a range between "significant and substantial".

Submissions in reply by the Crown

The Crown conceded that the age of the offender at the time of the offending was relevant in that he was still youthful at that time. The Crown also conceded that a finding of special circumstances should be made.
In respect of the offending pursuant to s 66EA, the Crown submitted the focus should be on the relationship and time period of that relationship. The court would also take into account the acts and conduct involved in those acts. The Crown rehearsed its submission that it was mid-range offending.
The Crown submitted that in respect of the s 76 offences, where the offending occurred either at the home or school of the victims, that would elevate the offending to mid-range.

Determination

Section 3A of the C(SP)A 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."
In assessing the objective seriousness of the offending, I accept the Crown's submission that in relation to the victims CW, KW, LW and CF, the offending constituted an abuse of trust as it arose out of the special relationship of trust the offender had with the victims as their teacher. As the sole teacher at that school, the offender was the only authority figure and the pupils in his care were particularly vulnerable as they had no other staff to confide in or seek protection with. I accept further the Crown submission that the risk of detection was low and the offender was able to act with impunity, given the fact that, notwithstanding that the victims were all related, they were unaware that their siblings had been abused until many years later.
I accept the Crown's submission in relation to the victims CW, KW and WW, that the offender's criminal conduct breached a special relationship of the trust of the victim's parents who had allowed him into their home as a boarder, and the fact that he also taught some of the family children. In relation to AA, I accept the Crown's submission that the offending was a breach AA's mother's trust as he was a boarder in her home at the time of the offending, as well as a breach of the victim's trust. The offender was not the victim's teacher, but did teach at the same school and was therefore in a position of authority.
I also accept the Crown's submission that the offender groomed all of his victims in order to facilitate his offending. He did this by the use of bribes or rewards such as treats of lollies, chocolate and ice-cream, special attention, such as being chosen to assist their teacher or alteration of exam results.
The objective seriousness of the offences against CW, being Counts 1, 2, 3 and 5, has to be assessed having regard to the fact that CW was five, six or seven at the time of the offences, against an age range pursuant to s 76 of being under 16 years.
Count 1 was an incident in the boys' toilet, where the offender pulled down CW's shorts and underpants and took his penis out of the fly of his pants. He touched her vagina with his fingers and then rubbed his penis himself until it was erect. This constituted offending below the mid-range of objective seriousness for an offence pursuant to s 76, but in the upper part of the lower range for such an offence.
Count 2 involved the offender moving his erect penis between CW's legs, moving it in and out until he ejaculated over her thighs and legs. This conduct constituted serious criminal conduct within the mid-range of objective seriousness for an offence pursuant to s 76 of the Crimes Act.
Count 3 occurred on another occasion when CW was asked to stay after school, and occurred in the storeroom. The offender told CW to take off her shorts and underpants and lay on her back, and then knelt over her on his hands and knees. He forced her legs open with his knees and lowered himself down on top of her, moving up and down on top of her with his erect penis between the tops of her legs. This was objectively serious criminal behaviour, just below the mid-range of objective seriousness for an offence pursuant to s 76.
Count 4 occurred on the same occasion, when the offender lowered himself on top of CW and rubbed his penis in her vagina, penetrating her vagina. It caused the victim discomfort in her vagina and the offender ejaculated. This was objectively serious criminal conduct, within the mid-range of objective seriousness for an offence of carnal knowledge pursuant to s 67 of the Crimes Act.
Count 5 occurred on another occasion in the storeroom. The victim was laying on her back and the offender was on top of her, rubbing his penis against her body, with skin-on-skin contact. This was also objectively serious criminal conduct, just below the mid-range for an offence pursuant to s 76 of the Crimes Act.
In relation to Count 6, KW was aged between eight and 10 years during the time when the offender taught at BPS, and during the time he maintained an unlawful sexual relationship with her. The offence was established when it was found beyond reasonable doubt that the offender engaged in two or more unlawful acts. Those acts included masturbating the offender (alternative Counts 7 and 9), putting his penis between KW's legs and moving it back and forth in the area of her vagina (alternative Count 8), having KW perform fellatio on him (alternative Count 10), and placing his hand on her vagina whilst swimming (alternative Count 16). The unlawful sexual relationship was maintained over a substantial period of time whilst he boarded with KW's family and taught her at the BPS. The unlawful sexual acts occurred at the school, in his bedroom at the W home, and at the river on the W family farm.
Having regard to the number of offences involved, the nature of those offences, and the maximum penalties proscribed for them, the age of the victim KW, and the period of time over which the ingredient offences were committed, the age differential between the offender and the victim, and the context in which the offender had access to the victim, both as a boarder in her family home and as the sole teacher at her school, I find that the offending pursuant to Count 6 was very serious criminal offending, within the mid-range for an offence pursuant to s 66EA(1) of the Crimes Act.
The offending in Count 20 involved the victim LW, who was six or seven years of age. She was asked to help the offender and they took some equipment to the male toilet. The offender sat her down on the toilet and placed a broom handle between her legs, moving it back and forth, whilst lifting up the broom. The victim could feel the broom rubbing against her vagina. The offender then pulled LW onto his lap and grabbed one of her hands, pulling it towards his groin. His penis was partially exposed and was erect. He told LW that she would pass her exams if she touched his penis. LW kept pulling her hand away and he would push it against his penis, but eventually he gave up. This offending fell in the lower end of the range of objective seriousness for an offence pursuant to s 76 of the Crimes Act.
Count 21 concerned the victim CF, who was six years of age in 1966 when she commenced at the BPS. The offence pursuant to s 76 occurred inside the classroom when all of the other children were outside. The offender showed CF a number of pictures on a projector, and while he did that, he put his hand around CF's waist, pulling her closer to him. He then moved his hand up her dress and inside her underwear and rubbed her on the vagina. This was objectively serious offending on a very young child, just below mid‑range of objective seriousness for an offence pursuant to s 76 of the Crimes Act.
The statutory alternative to Count 22 involved the offender moving CF onto his lap and putting his legs either side of her. He unzipped his pants and tried to kiss her on the mouth. He then put his hand between her legs and pulled her underpants to one side. The offender then tried to kiss her on the mouth and he ejaculated between her legs. This was objectively very serious offending within the mid-range for an offence pursuant to s 76 of the Crimes Act. It was aggravated by the offender telling CF that it was their secret and that if she told someone, he would find her and kill her. He also said to her, "You are my favourite. If you tell anyone, I'll make you repeat school".
Count 23 occurred on an occasion when the offender walked CF to the girls' toilet. He went inside the toilet with her, unzipped his pants and pulled out his penis. He told CF to touch his penis and took her hand and put it onto his penis. CF pulled away and wet herself because she was scared. She bent down and hit her head on the end of his penis. The offender said to her before he left, "Don't tell anyone, or you'll get into trouble". This was objectively serious conduct, within the middle of the low-range of objective seriousness for an offence pursuant to s 76 of the Crimes Act.
The offending in Count 24 involved an occasion when the offender took WW, who was not a student at BPS, to the school on a weekend. The offender gave WW a chocolate bar with nuts in it. The offender sat on a desk and pulled his erect penis from his pants. He put his penis into WW's mouth and made WW move in front of him whilst he was sitting at the desk. This was objectively very serious criminal conduct within the mid-range for an offence pursuant to s 81 of the Crimes Act.
Count 25 occurred on the same occasion. The offender had complained that WW's mouth was gritty on his penis because of the nuts. WW swallowed the remaining nuts, and then continued to fellate the offender. For the reasons outlined above, this was objectively very serious criminal conduct, within the mid-range of objective seriousness for an offence pursuant to s 81 of the Crimes Act.
Count 26 involved the offender asking WW to remove his pants, and the offender removed his, and they lay on the floor. The offender rubbed Vaseline between WW's thighs and then got on top of WW and rubbed his erect penis back and forth between WW's upper legs. Again, this was objectively serious criminal conduct, within the mid-range for an offence pursuant to s 81 of the Crimes Act.
Count 27 occurred on another occasion. WW was given chocolate by the offender, who asked WW to put his penis into the offender's anus and move it back and forth. The offender lay on the floor on his stomach, and WW got on top of him, and put his penis between the offender bottom cheeks. This was objectively serious criminal conduct, within the mid-range of objective seriousness for an offence pursuant to s 81A of the Crimes Act.
AA was between 10 and 12 years of age when the offender moved into her home, and she was a student at the school at which he taught, but not in his class. Count 34 occurred on an occasion when she was in the garage of her home. The offender came into the garage and told her to bend over and open her legs, and that it would not hurt. The offender started to pull down her pants and underpants, and pushed one of his hands around her anus. This was an offence of assault female and commit act of indecency on a female under the age of 16 years. The objective seriousness of the offending fell within the low‑range of objective seriousness for an offence pursuant to s 76 of the Crimes Act, and in the middle of that low-range.
The offender then penetrated AA's vagina with his penis from behind, moving it back and forth. It felt uncomfortable and then AA's vagina felt wet. This was objectively very serious offending, and within the mid-range of objective seriousness for an offence pursuant to s 71 of the Crimes Act.
Count 36 then involved the offender getting AA to lie on the floor. He took her underpants and pants down so that they were off one leg. The offender then lay on top of her and penetrated her vagina with his penis. This also constituted serious criminal conduct, within the mid-range of objective seriousness for an offence pursuant to s 71 of the Crimes Act.
General deterrence is important in the sentencing process for child sexual offending. It amounts to pernicious offending, at the heart of which is predatory behaviour on the most vulnerable persons in our society. Aggravating features of the offending, pursuant to s 21A(2) of the CSPA are as follows: (eb) In respect of some of the ingredient offences concerning KW, which form the basis of the unlawful sexual relationship pursuant to s 66EA, some of those offences were committed in the home of the victim. (g) The injury, emotional harm, loss or damage caused by the offending was substantial. I refer to the Victim Impact Statements below. (k) The offender abused a position of trust or authority in relation to the victims. In respect of the victims CW, KW, CF, and LW, the offender abused a position of trust as their teacher. In relation to the W children, he also breached a position of trust towards their parents, who allowed him into their home as a boarder, and thereby gave him access to the children. That breach of trust also applied to WW who was at high school at the time of the offending. It also applied to AA in that the offender was a boarder at her mother's home, but also a teacher at her school, and therefore in a position of authority. I have, however, been careful not to double count any breach of trust or authority in sentencing the offender.
Pursuant to s 21A(5A), 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. Here, I am satisfied that the offender's good character, which led to his appointment as a teacher at the children's schools, and also as a boarder in their parents' homes, was of assistance to the offender in the commission of the offences, and thus his good character may not be taken into account as a mitigating factor here.
Given the offender's age now of 75 years, and the lengthy period of time that expired with no further offending, in the order of 50 years, I am persuaded that specific deterrence is of diminished importance in the sentencing process here. As the offender pleaded not guilty and has shown no remorse or contrition for his offending conduct, I make no discount on sentence in respect of those matters. Given his age however, I am satisfied that the offender is a low risk of recidivism.
I have had regard to the subjective factors advocated on behalf of the offender. He was aged between 20 and 22 at the time of the offending concerning CW, KW, CF, LW and WW. He was slightly older, between 23 and 24, at the time of the offending concerning AA. I therefore take his relative youth into account. I do not take into account the fact of the offender's isolation as a young teacher in a remote country school as being relevant to the sentencing process here. As the sole teacher, and as a boarder with the W family, whose property was adjacent to the school, the offender was clothed with an authority that allowed him to offend with impunity, given the low risk of detection. It also allowed him to both groom the children prior to offending, and threaten them thereafter so as to ensure absence of repercussions.
Whilst the offender was thereafter living a blameless life, with no further offending, the reality is that his criminal conduct remained undetected for almost 50 years, and the lack of detection was directly related to the nature of the offending. The offender therefore escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes.
I note that the author Mr Watson-Munro opines that the offender at aged 75 years has denied paraphilic tendencies and has good prospects of rehabilitation based on his career as a schoolteacher, his extra-curricular activities, a strong connection with his family, and an absence of substance abuse. I accept that he has, given his age and the absence of further offending, good prospects of rehabilitation.
Section 25AA of the CSPA was introduced into the CSPA on 31 August 2018. It provides as follows: "(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, and 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, the 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 s 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 paragraphs (a) or (b), (d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a) - (c).'"
In R v Cattell, supra, 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 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."
I have had regard to the following maximum penalties as guideposts in the sentencing process: 1. For offences pursuant to s 76 of the Crimes Act 1900 (Counts 1, 2, 3, 5, 6, 21, statutory alternative to Count 22, 23, and 34), the maximum penalty of 5 years imprisonment. 2. In respect of the offence of carnal knowledge pursuant to s 67 of the Crimes Act (Count 4), the maximum penalty of life imprisonment. 3. In respect of Count 6, the offence pursuant to s 66EA(1) of the Crimes Act, the maximum penalty of life imprisonment. 4. In respect of the offence of assault a male person and commit act of indecency pursuant to s 81 of the Crimes Act 1900, (Count 24, 25 and 26) the maximum penalty of 5 years imprisonment. 5. The offence of carnal knowledge of a girl then of or above the age of 10 and under the age of 16 years, pursuant to s 71 of the Crimes Act 1900 (Counts 35 and 36) the maximum penalty of 10 years imprisonment. 6. The offence of procure an act of indecency on WW pursuant to s 81A of the Crimes Act 1900 (Count 27) the maximum penalty of 2 years imprisonment. There is no Standard Non-Parole Period applicable to any of the offences.
In historical sexual assault cases, an offender does not benefit from any extensive delay in the revelation of such offences - see R v Cattell, supra, per Price J at [135]. For the reasons outlined above, namely that the offender's criminality remained undetected for decades and the lack of detection was directly related to the nature of the offending, he escaped justice and enjoyed a life free from opprobrium or punishment for his crimes during that time. I note that there was some delay in the investigative process following referral of two separate matters from the Royal Commission.
With respect to the delay in investigation and prosecution, I accept that there was a delay of six years between commencement of the investigation and the offender coming to trial. Whilst the offender may have been in a state of uncertain suspense for that period of time, he is not being sentenced for a stale crime and I find that the principle in R v Todd does not apply so as to have the delay in prosecution sound in mitigation on sentence. However, I have taken it into account together with the offender's age.
When sentencing an offender for a child sexual offence, pursuant to s 25AA(3), the court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing.
The high maximum penalties proscribed for the offences pursuant to s 67 and s 66EA (life imprisonment), reflects the harm that is caused by this kind of sexual offending.
In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, the Court of Criminal Appeal said at [110]: "This court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G (2008) UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R (2011) VSCA 157; 32 VR 361."
The Victim Impact Statements provided to the court by CW, KW, CF and AA, provide living proof of the harmful effects of sexual abuse of children. They are each poignant examples of the substantial, profound and enduring psychological and physical impact that child sexual offending has on victims. Whilst they are not supported by medical evidence, I find that substantial harm was caused to each of the victims here, and that such harm has endured for the whole of their lives.
I intend to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. To ensure transparency in the sentencing process, I provide the following indicative sentences: Count 1 - offence pursuant to s 76 of the Crimes Act - 2 years imprisonment Count 2 - offence pursuant to s 76 of the Crimes Act - 2 years and 6 months imprisonment Count 3 - offence pursuant to s 76 of the Crimes Act - 2 years and 6 months imprisonment Count 4 - offence pursuant to s 67 of the Crimes Act - 8 years imprisonment Count 5 - offence pursuant to s 76 of the Crimes Act - 1 year and 6 months imprisonment Count 6 - offence pursuant to s 66EA(1) of the Crimes Act - 10 years imprisonment Count 20 - offence pursuant to s 76 of the Crimes Act - 1 year imprisonment Count 21 - offence pursuant to s 76 of the Crimes Act - 2 years imprisonment Statutory alternative to Count 22 - offence pursuant to s 76 of the Crimes Act - 2 years imprisonment Count 23 - offence pursuant to s 76 of the Crimes Act - 1 year and 6 months imprisonment Count 24 - offence pursuant to s 81 of the Crimes Act - 2 years imprisonment Count 25 - offence pursuant to s 81 of the Crimes Act - 2 years imprisonment Count 26 - offence pursuant to s 81 of the Crimes Act - 2 years and 6 months imprisonment Count 27 - offence pursuant to s 81A of the Crimes Act - 1 year imprisonment Count 34 - offence pursuant to s 76 of the Crimes Act - 1 year imprisonment Count 35 - offence pursuant to s 71 of the Crimes Act - 4 years imprisonment Count 36 - offence pursuant to s 71 of the Crimes Act - 5 years imprisonment
In determining an appropriate aggregate sentence, regard must be had to the principle of totality. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, Howie J stated at [27]: "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."
In applying the above principles, there must be some concurrency of sentence where the offences occurred on the same occasion, for example, Counts 1 and 2, Counts 3 and 4, Counts 21 and the statutory alternative to Count 22, Counts 24, 25 and 26, and Counts 34, 35 and 36. However, there must also be accumulation in sentence in respect of each of the victims, and also in respect of the offending against individual victims which occurred on separate occasions. Taking into account those matters of concurrency and accumulation, the aggregate sentence to be imposed involves an assessment of what is appropriate to reflect the totality of criminality in all of the offending - see Aryal v R [2021] NSWCCA 2 at [46].
Having regard to the objective seriousness of the offending overall, and the subjective matters put on behalf of the offender, including his age, an appropriate aggregate sentence is one of 15 years imprisonment.
I make a finding pursuant to s 44(2) of the CSPA of special circumstances based on the offenders first time in custody, his age at the time of entering custody, namely, 74 years and the accumulation involved in the sentence. I therefore intend to vary the statutory ratio between head sentence and non-parole period. The non-parole period should however, reflect the minimum time the offender spends in custody, having regard to the serious nature of the offending, the number of offences and to give effect to general deterrence and denunciation of the offender's conduct. I intend to impose a non-parole period of 8 years and 6 months to commence on 17 July 2020 and to terminate on 16 January 2029. The balance of term will be a period of 6 years and 6 months to terminate on 16 July 2035.

Orders

I make the following orders: 1. You are convicted of the following offences: Count 1 - assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. Count 2 - assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. Count 3 - assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. Count 4 - carnal knowledge of CW, a girl then under the age of 10 years, pursuant to s 67 of the Crimes Act 1900. Count 5 - assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. Count 6 - maintain an unlawful sexual relationship with KW, a child under the age of 16 years, pursuant to s 66EA(1) of the Crimes Act 1900. Count 20 - assault female and commit act of indecency on LW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. Count 21 - assault female and commit act of indecency on CF, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. Statutory alternative to Count 22 - assault female and commit act of indecency on CF, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. Count 23 - assault female and commit act of indecency on CF, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. Count 24 - Assault WW, a male person, and commit act of indecency on him, pursuant to s 81 of the Crimes Act 1900. Count 25 - Assault WW, a male person, and commit act of indecency on him, pursuant to s 81 of the Crimes Act 1900. Count 26 - Assault WW, a male person, and commit act of indecency on him, pursuant to s 81 of the Crimes Act 1900. Count 27 - procure an act of indecency with WW, a male person, pursuant to s 81A of the Crimes Act 1900. Count 34 - assault female and commit act of indecency on AA, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900. Count 35 - Carnal knowledge of AA, a girl then of or above the age of 10 years and under the age of 16 years, pursuant to s 71 of the Crimes Act 1900. Count 36 - Carnal knowledge of AA, a girl then of or above the age of 10 years and under the age of 16 years, pursuant to s 71 of the Crimes Act 1900. 1. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA 1999 2. I sentence you to a non-parole period of 8 years and 6 months to commence on 17 July 2020 and to expire on 16 January 2029. 3. The balance of term will be a period of 6 years and 6 months to commence on 17 January 2029 and to expire on 16 July 2035.
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: 16 March 2021

At a glance

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Judgment (16 paragraphs)

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Cases Cited (16)

Cited By (2)