R v Pethybridge

Charges 3 & 4

1. For charges 3 and 4, the victim, LM, was born in a hospital in Marrickville, in 1965. Very shortly after her birth, she was adopted by parents who, in the case of the father, was close to the offender. To LM, the offender was known as her 'Uncle'. LM's father (DA) attended training college with the offender. One of the offender's daughters was close in age to LM. Both her parents had management roles with the Salvation Army. At one point, they managed a church at Forbes Street in Croydon Park.
2. Between 14 January 1970 and 18 January 1973, the defendant's family visited LM's family, whilst they were living at Croydon Park. LM was aged between 5 and 7 years of age in this period. The families were sharing a meal. At a point, LM came to sit on the offender's lap. The offender used his hand to push her underwear to one side, cup her vagina and insert his fingertips into her vagina. This was the conduct constituting charge 3. The offender told LM that what had occurred was a 'secret' between them and (if she said anything) no one would believe her. But if she did say something, she would be returned to the Bethseda Hospital (from where she was adopted) or to a home run by the Salvation Army.
3. Between 25 April 1973 and 16 January 1975, the offender was stationed or had residence in Labuan Road in Holsworthy, near the currently situated military base. LM's family went to visit the offender, and his family, at this residence. LM went to the girl's bedroom. She saw the offender lying on one of the single beds in the room. She also saw one of the offender's daughters (the younger one, S, being closer in age to LM) astride the offender whilst he bounced on the bed simulating a 'pony ride'. She also observed that the offender had the zipper on his shorts opened and his penis exposed. The offender put S down and picked LM up and put LM in the same position that S had been in, straddled across his waist. He took LM's hands and put them around his erect penis, clasping her hands, and created the bouncing motion. This occurred, LM recalled, for a short time, before the offender's other daughter, D, came into the room and the offender put her, LM, on the ground. This is the conduct constituting charge 4.

Charges 7 & 8

1. For charges 7 and 8, the victim EJ was RG's younger sister. The offender's elder daughter (D) was about the same age and EJ remembered the defendant as being a family friend whilst a minister at West Wallsend.
2. Between 13 January 1971 and 26 April 1973, EJ's family attended a camping holiday at Wangi Wangi, in Lake Macquarie. EJ was aged 10 or 11. EJ's family had experienced this type of holiday previously. One of the typical activities involved 'prawning' on the other side of the bay. On one occasion in this period, the defendant and his family visited them. EJ's father drove her, the offender, the offender's son and daughter (D) along with EJ's younger brother (GJ) to get to the other side of the bay to partake in prawning. EJ came to sit on the defendant's lap in the front passenger seat.
3. During the drive, the offender initially touched EJ with his fingers on the outside of her vagina, on her underpants. He then got his finger underneath her underpants and inserted it into her vagina. This conduct constituted charge 7. The offender's conduct caused her to wiggle and jump. Her action in doing so attracted the attention of the driver, her father. His response was severe, not only admonishing EJ for creating a disturbance, but actually striking her on the head.
4. After this, the offender again put his finger inside EJ's underpants, back into her vagina. She had to sit there until the car stopped. This is the conduct constituting charge 8. EJ jumped out of the vehicle as soon as she could open the door.

Charge 9

1. For charge 9, the victim (DB) was born in 1962 and grew up with a family who were involved with the Salvation Army in Campsie. One of the activities associated with the church was regular Bible study session groups on Friday nights. Part of the reason for the sessions occurring on Friday nights was that this was the night that children of the congregation participated in musical activities; leaving the parents to conduct the sessions and enjoy supper afterwards.
2. Between 1 January 1972 and 31 December 1973, the offender was the Corps officer at Lambton. On one occasion, in this period, DB's parents hosted a bible study session at their home. DB was about 11 years of age. DB would ordinarily have been absent, but she was sick on the occasion in question, and was lying in her bed, watching television. The bible session group concluded, and the offender made a quip about the girls (being a reference to DB and her sister) being home soon. DB's mother corrected him: DB was at home. The offender decided to pay her a visit in her bedroom.
3. To DB's shock, the offender entered her room. He stood beside the bed and asked (rhetorically) that she was not feeling well and DB said no. He then placed his hand on her forehead. He then moved his right hand down her pyjama top and touched her right breast before squeezing it for about two seconds. Thereafter, he moved the same hand over her left breast and squeezed the left breast for two seconds. DB told him to get out. He told the defendant not to say anything.

Charges 10 - 13

1. For charges 10, 11, 12, and 13, all of these offences concerned the single victim, RW. RW was born in February 1976, initially growing up in Bathurst before moving to Orange. Her mother was heavily involved in the Orange corps of the Salvation Army.
2. From early 1985 to early 1987, the defendant was an Assistant officer of the Orange Corps, doubling also as the Associated Chaplain for the NSW Rural Fire Services. In this period, the defendant and his wife occupied two different premises in Orange. In this period, RW's mother got to know the offender.
3. Between 29 April 1986 and 14 January 1987 - the relevant period affecting all of charges 10 to 13 (incl) - RW was regularly babysat by the offender. Throughout this period, RW was 10 years of age. This was the result of her mother (who was a single mother) engaging in fundraising activities for the Salvation Army in the form of collections by Salvation Army members raised of local pubs or hotels on Friday nights. A pattern emerged of her mother dropping off RW (and her younger brother) to the offender's place. This was the second of the two places that the offender stayed at during his stint in Orange, being Phillip Street. This particular place had a granny flat out the back.
4. In this relevant period, on one occasion, RW was dropped off to this place after school. She was excited to see the offender, giving him and the offender's wife hugs. She went to the granny flat. In the granny flat, the offender started to touch her breasts. He then moved his hands downwards towards her vagina; using his finger to rub, and then insert a finger into her vagina. During this activity, the defendant masturbated himself and told RW that she would be 'making God happy' by letting him engage in these sexual activities. This is the conduct constituting charge 10.
5. RW said that after this activity, the offender told her that she must keep what had occurred as a secret or otherwise, she would be sent to a children's home.
6. A couple of weeks later, on a Friday night, her mother was collecting money from the pubs. RW, and her brother, were left with the offender at his place in Phillip Street, Orange.
7. Collection monies so extracted were deposited, on an interim basis, at the offender's home, before they could be secured and banked by Ms Diane Cooper, the offender's secretary. In the meantime, RW and her brother were involved in counting money. To what particular end, and by what process, the evidence was unclear. At any rate, in the loungeroom, RW was sitting on a chair to the side of, and slightly behind, the offender. He started putting his hand and rubbing it over her clothes in the chest area. He then moved his hands down, underneath her underpants and touched her on her vagina. Then, there was a knock on the door and this sexual activity ceased. This is the conduct constituting charge 11.
8. On another occasion, in similar circumstances to charge 10, RW was in the kitchen about the kitchen table, sitting next to the offender; again counting money. Underneath the table, the offender started touching RW's vagina underneath her underpants. There was a brief interruption, before the offender resumed touching her in the vagina area and indeed inserting his fingers inside the vagina. This is the conduct constituting charge 12.
9. On a further occasion, which she recalled was in winter, RW was again babysat at the offender's home, in similar circumstances to the offences for charges 11 and 12. This time, she was in the dining room, the offender put his hand down her pants, touching the area of her vagina. RW went to the bathroom. When she left the bathroom, the offender was standing at the doorway and he started touching her again on the vagina. He said to her that he needed to do this and to remember that (it) made God happy. He put his hands inside her underpants and inserted his fingers into her vagina. RW recalled that this occasioned hurt to her. This is the conduct constituting charge 13.

Section 25AA(1) of the CSP Act

1. Following the commencement of s 25AA(1), a sentencing judge must sentence an offender for a child sexual offence (as defined in s 25AA(5)) in accordance with "the sentencing patterns and practices" at the time of sentencing, not at the time of the offence. I am mindful of the sequential requirements outlined in R v Cattell [2019] NSWCCA 297, Price J (Hoeben CJ at CL and Campbell J agreeing) at [123].

The Crown's submissions

1. In respect to all of the offences, the Crown emphasised the age of the victims. Counts 1-4 and 7-9, respectively, involved victims who were very young (particularly so for the victims of counts 1-4). For counts 10, 12 and 13 (incl), in each case, the victim was at the lowest end of the range for the applicable age range for the particular offences. For count 11, the victim was aged at the mid- point of the applicable age range. The Crown referred to the observations of Spigelman CJ (Price J and McCallum J agreeing) in RJA v R (2008) 185 A Crim R 178 that even though age may be part of an offence, it does not mean that the victim's age, and the victim's vulnerability on account of age, is irrelevant to consideration of the gravity of the offending.
2. In relation to the indecent assault offences perpetrated against a girl (counts 1-4, 7-9 and 11), the Crown emphasised that the character of the assault, including the nature of the physical contact, had to be taken into account. The Crown observed that at the time the conduct comprising the offending for counts 2, 3, 7 and 8 had occurred, the circumstance of digital penetration of a victim's vagina did not fall within the statutory definition of 'sexual intercourse'. Necessarily, it would have to amount to a very serious instance of indecent assault.
3. The Crown further emphasised, apparently with reference to the offences of sexual intercourse with a child (counts 10, 12 and 13) that the circumstance that digital penetration was the form of the sexual intercourse, rather than some other form of sexual intercourse, did not rank it as being lower in the hierarchy of seriousness to sexual offending. However, it would be expected that if the form of sexual intercourse involved penile penetration that would have made the offending more serious (R v King [2009] NSWCCA 117 at [36]).
4. The Crown also emphasised as relevant the duration of the offences.
5. The Crown further submitted that the offender knew, or at least had a reasonably well informed belief, as to the age of the victims because of his relationship to the victims' families and the ages of his own children.

The offender's submissions

1. On the aspect of the gravity of the offending, the offender's Counsel commonly submitted that the offending was not planned nor involved any organised criminal activity. The offending was opportunistic.
2. There were other mitigating circumstances relied upon, which I will refer to when considering the offender's subjective case later in these remarks.

Findings

1. For the offence of indecent assault, relevant considerations on the aspect of the gravity of the offending include the actual character of the assaults: R v Van Ryn [2016] NSWCCA 1 and the degree of physical contact involved: Corby v R [2010] NSWCCA 146 at [72].
2. When assessing the objective seriousness of a sexual intercourse offence against a child, the actual character of the act involved is important. While no one type of intercourse is of itself more or less serious than another, the nature of the intercourse can be of significance because it is often the degree of physical contact involved, the time over which the acts occurred and whether any harm, hurt, injury, physical or psychological, resulted. Other matters that bear on the assessment include the age difference, the relationship between the people and the age relevant to the range encompassed by the offence; the younger the child the more serious the offence; R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [42] (Latham J); RJA v R (2008) 185 A Crim R 178 at [13]. I look at the nature of the penetration, the extent of the penetration, additionally, I look at the time over which the acts occurred. In particular here, of course, the relationship of the perpetrator to the child is of particular relevance.
3. One difficulty when assessing the objective gravity of each of the offences is that one of the factors usually relevant for the offending - the duration of the offending - was very hard to determine, given the lapse of time. That said, I acknowledge that the nature of the offending, almost in all cases, was surreptitious or furtive and done with an intent to evade detection, so the factor of duration is of lesser significance. In all cases, there was no coercion or force but, given the age of the victims, it could hardly be the case otherwise.
4. There is little to distinguish the objective gravity of the offending for counts 1 to 3 (incl) and 7 & 8. The Crown distinguished count 1 (and also count 11) where the conduct comprised touching the relevant victim's vagina; whereas for the other offences, the conduct comprised actual penetration. I accept that point of distinction. For the offending for charge 4, that was less serious in nature, given that contact was made to the offender's penis; not the victim's genitals. But, to offset that, for charge 4 (perpetrated against LM) (and also count 11 (perpetrated against RW)) the offending was preceded by or accompanied by threats to the victim.
5. I regard the offending for charges 2, 3, 4, 7, 8 and 11 to be marginally more serious than the offending for charge 1. For charge 11, there was also touching of the victim's breasts. The offending comprising count 9, which involved touching and squeezing the victim's breasts was less serious than the offending involving sexual touching or digital penetration. But in all cases, given the age of the victims, I would characterise the offending as falling within the mid-range. Particularly important in this respect is that for charges 2, 3, 7 and 8, the offending occurred at a time when digital penetration did not satisfy the definition of sexual intercourse, as it now does.
6. Counts 10 and 12 and 13 were very serious. The victim fell at the lowest end of the age bracket for this offending. I regard the offending for charge 10 as marginally more serious than the offending for charge 12: the earlier offending was immediately preceded by touching of other parts of the victim's body, including her breasts. Charge 13 was more serious than the offending for charges 10 and 12 since it involved disruption in activity of a generally sexual nature. But in all cases, the digital penetration was brief. I regard the offending for these charges as falling below the mid-range but above the lower end of the range.

Aggravating circumstances

1. The Crown contended that the conduct comprising charges 1-10 (inclusive) involved an "egregious" breach of trust by the offender (per CSP Act, s 21A(2)(k)). It was said that his position as both a Minister of the Church, but also as a family friend, placed him in a position of trust with respect generally to the victims' respective families and to the victims in particular.
2. In its written submissions, the Crown explained that it did not suggest that this aggravating factor extended to charges 11 -13 inclusive since abuse of position of authority was already an element of the offences. However, the last view may not be right: see PC v R [2022] NSWCCA 107 ("PC") at [76]. After receipt of the Crown's submissions (MFI 1), I arranged for my Associate to email the legal representatives to the parties to consider the correctness of the Crown's statement of its position (in this particular respect) in the light of the decision in PC (MFI 4).
3. In response to that communication, Counsel for the offender, whilst acknowledging what had been said in PC, sought to distinguish that case on the facts. There, the offender was the father of a single complainant, who had committed multiple offences over a substantial period. Counsel referred to an earlier decision of the Court of Criminal Appeal, being MRW v R [2011] NSWCCA 260, where at [78] Bathurst CJ (with whom James J and Johnson J agreed) suggested that for an offence containing the element of the victim being under the offender's authority, where the same circumstances gave rise to abuse of trust and abuse of authority, a sentencing judge should be cautious in giving "undue weight" to an abuse of trust.
4. The offender's Counsel argued that RW's evidence did not rise to the level of establishing any breach of trust, as distinct from the breach of his authority as babysitter and (in the victim's eyes) as a church leader. But if it was found that the offender breached a position of trust, then it was no different to conduct being in breach of authority. So to regard the offending against RW as amounting to a breach of trust would involve double counting.
5. In her submissions at the sentencing hearing, Ms Crown argued that a breach of trust and a breach of authority are distinct from one another, albeit that they overlap. She submitted that if a breach of trust deriving from the offender's position of authority was to be treated as an aggravating factor, it should be approached with care.
6. It is pertinent to repeat that only for counts 11, 12 and 13 was the circumstance of the offending occurring under the offender's authority an element of the offence (s 66C(1) of the Crimes Act).
7. In connection with counts 11, 12 and 13, I am mindful of the observations of Bathurst CJ in the passage from MRW that the offender's Counsel emphasised. Nevertheless, the relevant passage from MRW relied upon by the offender was referred to by the Court of Criminal Appeal in PC, and still presented no obstacle to the Court in recognising the conceptual differences between breach of trust and offending conduct occurring whilst the offender had authority over the victim. In the case of counts 11-13 (incl), in my view, it is appropriate to accept the aggravating factor. It is one thing for a parent to leave the temporary care of a young child to another adult who the parent knows; whilst the parent attends to another activity; which gives rise to, or confers authority upon, the other adult. It is another thing for the same parent to select the other adult on the basis of a perception or belief of the adult's personal qualities, such as the adult's moral rectitude. RW's mother did not select just anyone whom she knew, or had heard about, to look after RW. She selected the offender because of his perceived qualities of character. She selected him because she trusted him. That trust was abused. Nevertheless, I take heed of MRW, reinforced by the Crown's submission; that care must be taken to not give excessive weight to the aspect of a breach of trust in the circumstances.
8. In connection with the remaining counts (1-10), I find that the offending was an abuse of trust, and I accept the Crown's submission as to why that is so. In particular, I observe that in the case of victims RG, LM, and EJ, there was such a close family connection between the victims' parents and the defendant (and his wife) that the offender was regarded as the victim's 'uncle'.
9. The Crown referred to the Court of Criminal Appeal's decision in R v Fisher (1989) 40 A Crim R 442, at 445, which indicated the especially stern view sentencing courts take to offenders who perpetrate sexual offences against young children who stand in such a position of trust.
10. The Crown also submitted that the aggravating circumstance of a victim's vulnerability was also applicable to each offence (CSP Act, s 21A(2)(l)). The Crown cited certain authorities which indicated that even for an offence stipulating an age range for a victim, the Court is not precluded from taking into account the victim's vulnerability, for the offences of aggravated indecent assault of a child (R v JTAC [2005] NSWCCA 345), or sexual intercourse with a child (Shannon v R [2006] NSWCCA 39). I agree with the submission.
11. For charges 3 and 9, the offending conduct occurred at the victim's respective homes (CSP Act, s 21A(2)(eb)).

Victim impact statements

1. Section 25AA(3) of the CSP Act provides that 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 the Courts).
2. Victim Impact Statements were received from all of the victims. All but one of them were before Judge Frearson in 2018, when sentencing had occurred following the first trial.
3. RG referred to the constant nightmares she had endured through her childhood and a desperate desire to avoid the offender through events organised by the Salvation Army at which the offender was a participant. Her nightmares resurfaced when she came across the offender's son in 2013 whilst working, and increased when reports surfaced of allegations aired in the Royal Commission into institutional abuse. She wrote, in terms which suggested that she had tried to 'bottle up' her feelings and thoughts until she had complained about the offender to her sister. But the reference also conveyed strength and resolve. RG was bent upon taking action to send a message to potential perpetrators.
4. LM described her childhood as being "sad, lonely and confused". She described herself as being a 'destructive rebellious teen' and an 'irrational and fearful' young mother. She felt that in her childhood she was subject to constant threat from the predations of the offender, through the trust that his position had engendered. She listed a number of costs that the offender's abuse had caused to her. She also spoke of the pain created by the processes of criminal justice; not simply to herself, but also to her family.
5. EJ set out a large number of effects from the offending against her. This included her depression for 40 years and abiding sense of distrust in people and hopelessness.
6. DB referred to her feelings of shame and, also regret, in her omission to confide in her parents, both of whom are deceased, and other friends and the difficulties she has had in trusting boys and men. She referred to the strain that the offender's conduct caused her to have with her religion. She also spoke of the strain imposed on her by the process of criminal justice and, in particular, the re-trial that had occurred.
7. RW referred to the effects of the offending upon her mental health; so much so as to cause her to try to harm, and even kill, herself because of her self-hatred. She referred to depression and anxiety as a teenager. As an adult, she has been diagnosed with a serious disorder. She said she distrusts men.
8. Recognition of harm to the victims is an important sentencing consideration in this case. Moreover, even without the moving written statements of the victims, sentencing courts recognise the profound and long-lasting damage done to child victims of sexual offending (R v Gavel (2014) 239 A Crim R 469 at [110]; R v Stefanac [2022] NSWCCA 129 at [55]-[56]).

Age

1. The offender was born in April 1932. At the date of the special hearing, he was just over 90 years of age. At the dates of the offending: 1. for charges 1 & 2, he was 26 years of age; 2. for charges 3 & 4, he was between 32 and 33 years of age; 3. for charges 7 & 8, he was about 45 years of age; 4. for charge 9, he was about 40 years of age; 5. for charges 10-13 (incl) he was about 54 years of age.
2. The Crown accepted that the age of an offender at the time of sentencing is a relevant factor on the sentence, since the sentencing option of imprisonment would be expected to be more onerous to an older individual, but submitted that otherwise, the Court would not automatically reduce a sentence because of the factor of age. Reference was made to the observation of Badgery - Parker J, in R v DCM (Unreported, NSWCCA, 26 October 1993), Kirby ACJ and Loveday J agreeing) that: "Age is not a licence to commit sexual offences nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years."

Background

1. The offender is married. As indicated in the Verdict Reasons, his wife, Mrs Pethybridge gave evidence on his behalf. It appears that the offender was married when he was only 19 years old, which would indicate that the marriage has endured for approximately 67 years. There are three children from that marriage.
2. Other parts of his background were most extensively set out in a report from Dr Susan Pulman, a forensic psychologist, which had been prepared with a view to address the issue of his fitness to stand trial.
3. Ms Pulman recorded that the offender grew up as the third eldest of six sons. He had a happy and normal childhood, with a good relationship with his parents, especially his father, and siblings. Although close to his brothers in childhood, they had grown apart as adults. Only one of his brothers was still alive.
4. As to his schooling, the offender had disclosed that he was an average student and spent time at the Auburn Technical School. When aged 24, he trained at the Salvation Army Officer College and thereafter spent the balance of his working career with the Salvation Army, until his retirement in 1997; and he has since received an aged pension.
5. Full details of the offender's long career as an Officer in the Salvation Army were set out in [350] of the Verdict Reasons.

The offender's mental condition

1. This was a matter upon which the offender emphasised in the material he relied upon in the sentencing exercise. It is to be noted, as a preliminary point, that, the offender himself participated in interviews with various mental health professionals.
2. In a report dated 15 August 2022 prepared by Dr Sathith Dayalan, a forensic psychiatrist, specifically for the sentencing proceeding, Dr Dayalan interviewed the offender, conducted a mental state examination of him and also reviewed Justice Health records, and some reports from health professionals going back to 2018. Dr Dayalan also spoke with Mrs Pethybridge.
3. Dr Dayalan noted that the offender had been diagnosed with Alzheimer's Dementia from August 2019, although there had been signs of cognitive impairment from August 2018.
4. The offender referred to earlier reports of Dr Dayalan, which I will turn to momentarily. But in relation to his most recent report, Dr Dayalan said that the offender had a diagnosis of a major neurocognitive disorder; which impacted upon his functioning and capacity to carry out daily activities, without assistance; although he did not discern any significant decline since his previous assessment of the offender in December 2020. Further, on the basis of the findings I made in the Verdict Reasons, he also diagnosed the offender with paedophilia, of a non-exclusive type and sexually attracted to females.
5. I was referred to Dr Dayalan's earlier report, of January 2021, which was directed to his fitness to stand trial and was doubtlessly influential in explaining why a special hearing occurred, rather than a trial. In the reports produced by Dr Dayalan, she considered, in detail the Presser factors, but did not strike me as supplying any additional matters relevant to the present exercise beyond her report of August 2022.
6. I was also referred to part of the report of Dr Pulman, which I touched upon earlier in these remarks on the matter of the offender's background. Dr Pulman had also reviewed Justice Health records and opinions of health practitioners (including Dr Dayalan). Dr Pulman noted that signs of cognitive impairment may have been present as early as 2008, when he was diagnosed with mild cognitive impairment; if not 2016, when, at the latter time, a psychiatrist regarded the offender presenting with a mild neurocognitive disorder. She also addressed the Presser factors.
7. There was no evidence of mental abnormality at the time of the offending; which might have substantially reduced his culpability. As to the factor of age, an offender's ill health at the date of sentencing does not provide a license to commit crime: R v Smith (1987) 27 A Crime R 315 at 317. In the circumstances here, it will be for the Tribunal to determine the offender's care and treatment. I accept that detention of some kind would cause hardship, but this matter is dealt with separately later in these remarks.

Antecedents

1. On 2 October 2020, the offender was resentenced by the Court of Criminal Appeal to an aggregate term of imprisonment for 4 years (with a non-parole period of 2 years and 9 months) for multiple offences of sexual assault (category 4), acts of indecency and indecent assaults against females aged under 16 years of age arising from conduct occurring in 1980 and 1982.
2. The offender's Counsel argued that, for the purpose of the current sentencing exercise, the offender should be regarded as not having a record of prior convictions. Because of the complexity of the prior history of the prosecution of these offences, to be referred to in greater detail later in these remarks, it was argued that this was effectively a re-run of the first of the two trials to which the offender had already been exposed. In sentencing for the convictions for charges in the second trial, because of events beyond his control, the offender was deprived of the opportunity to argue that he had no prior convictions because of the result of the Court of Criminal Appeal's setting aside of the convictions from the first trial. At the time of the first trial, he had no prior convictions.
3. To the extent that this argument was relevant to establishing a finding of prior good character, Ms Crown emphasised that s 21A(5A) would preclude such a finding and referred to Erazo v R [2016] NSWCCA 139 at [73] where it was stated that since the offending persisted over a five-year period (in that case), prior good character counts for very little in the synthesis relevant to the appropriate sentence. Ms Crown also emphasised that to the extent that good character could have been considered, the Court of Criminal Appeal would have assessed this at the time of re-sentencing. I accept these submissions.

Good character

1. Notwithstanding what I have just said, the evidence in the parole application was from Mrs Pethybridge, his son (Kelvin Pethybridge), daughters (Desley Maxwell and Sandra Robinson), nephew (Steven Pethybridge), and friends (Warren Holland and Diane Cooper, the latter who gave evidence for the offender during the special hearing) and a former colleague (Major Hilton Harmer OAM).
2. The character references before Judge Frearson in September 2018 were by Mrs Pethybridge, Kelvin Pethybridge, the Governor of the hospital and the Administrative Assistant at Long Bay Jail (where the offender had served, not being an inmate), grandsons (Cameron Pethybridge and AB Nathanael Maxwell), granddaughter (Ashleigh Lattouf) and other work colleagues, or persons who have dealt with the offender in his working capacity (Major James Ferguson, Major Hilton Harmer OAM, Colonel Bramwell Lucas, Captain Roy Maughan, Alan Staines, Craig Baird, Robyn Hur, J.B. Williamson) and friends (D.E Colman, Steven Reay, Colleen Pack and Beryl Fairhall).
3. They all paint a picture of a man who had devoted his working life to the assistance and aid of others; particularly those disadvantaged and marginalised through misfortune. He plainly had the capacity to inspire trust and confidence in others and had demonstrated leadership and managerial qualities. Repeated reference was made to his adherence to principles. The support of his wife, children and grandchildren also indicated a good family man.
4. However, as indicated, by reason of s 21A(5A) of the CSP Act, the offender's good character or lack of antecedents cannot be taken into account as mitigating factors if the factors assisted the offender to commit the offences. As I have found when addressing aggravating factors above, a significant reason why the parents left their very young children in the company of the offender was their friendship which was substantially the result of their respect and admiration for his position and character. Accordingly, in my view, written testimonials of his good character cannot be taken into account to prove that particular mitigating factor.

Absence of remorse/contrition

1. As was his right, prior to and up to the trial in June 2018, the offender argued, emphatically, for his innocence.
2. I am unable to find remorse or contrition. However, that is not to be taken as a matter which aggravates the offending.

Likelihood of re-offending and rehabilitation prospects

1. In Dr Dayalan's most recent report, that psychiatrist assessed the offender's prospects of recidivism both by reference to the Static - 99 scaling and the risk assessment instrument, STABLE - 2007. As to the former, he assessed the offender as being at the very low risk level; with his age being the most important factor in mitigating risk. As to the latter, he discerned that the offender had a low density of criminogenic needs, due to his neurocognitive disorder.
2. Given his age and predicament, these matters are scarcely relevant to the assessment of penalty. There is next to no prospect of the offender having access to female children even if, which would be astonishing, any abiding sexual interest in them endures to the present day.
3. The Crown conceded, if it was not otherwise obvious, that the offender was unlikely to offend and had good prospects of rehabilitation. I agree.

Delay

1. It is now 25 years since the last of the index offences was perpetrated (against RW). It is nearly 50 years since the offending occurred against RG.
2. The offender did not rely upon the circumstance of delay because of any sense of suspended anxiety. In my view, he was right to do so. The treatment of delay between the commission of the offences and prosecution and punishment of them as a relevant sentencing factor has been treated somewhat ambivalently in the authorities. But in the context of child sexual offences dating back many decades, where victims have delayed in bringing complaint to the police, and where the delay is not caused by the system of criminal justice itself, the tendency has been not to treat it as a mitigating factor. In R v Cattell [2019] NSWCCA 297 Price J (Hoeben CJ at CL and Campbell J agreeing) observed at [135], such crimes are not to be treated as 'stale'. Although the offender may in the ensuing years have led a blameless life or indeed continued with the good works through his offices with the Salvation Army, and may even have discarded the tendencies identified in the Verdict Reasons, and thereby exhibited rehabilitation, at the same time, the offender has "escaped justice or… and enjoyed a life free from opprobrium or punishment for his crimes during that time": Magnuson v R [2013] NSWCCA 50 per Button J at [62].
3. Counsel for the offender submitted that there was delay through the process of criminal justice, which featured a successful appeal against conviction of offences for which the offender is now to be sentenced. This delay was quantified as being 2 years, 10 months and 17 days. This, it was said, had occasioned stress and anxiety in itself and was additionally burdensome to someone of the offender's advanced age. His Counsel acknowledged that there was a realistic possibility that he will not be able to serve any full limiting term that the Court now imposes.
4. Ms McSpedden did, however, concede that good character could not be taken into account on past sexual offences per s 21A(5A) of the CSP Act and agreed further in the alternative that it could be inferred that the Court of Criminal Appeal would have considered for itself whether and to what extent good character could be taken into account
5. In addition to the matter raised by the offender's Counsel, it seems to me that there is also arguable prejudice to an offender in the sentencing exercise arising from delay in the institution of and prosecution of historical child sexual offences due to legislative amendments. This subject was touched upon recently in the Court of Criminal Appeal. In Young (a Pseudonym) v R [2022] NSWCCA 111 N Adams J (Bell CJ and Button J agreeing) said: "[48] The enactment of s 25AA (of the Crimes (Sentencing Procedure) Act 1999 (NSW)) was to avoid lower sentences being imposed. Had complaint been made prior to 31 August 2018 the applicant would have had the benefit of being sentenced on the basis of sentencing principles at the time. Although it is to be accepted that there was already significant awareness of the impact of child sexual assault at the time of the offending in this matter, the offending behaviour commenced prior to the enactment of standard non-parole periods ("SNPP") in NSW, which is but one indicator of how sentencing for child sexual assault offences has changed since the time of the offending in this matter. By way of illustration, I note that it was not until 2015 that the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) introduced a standard non-parole period of 7 years in respect on an offence under s 66C(1) of the Crimes Act (sexual intercourse with a child aged between 10-14 years). [49] Secondly, on 24 September 2018, the statutory sentencing regime in NSW changed: Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW). Suspended sentences were no longer an alternative for all offenders and an ICO was no longer available for sexual offenders: s 67(1)(b) of the Sentencing Act. Had the applicant been sentenced at any time after he turned 21 but before 24 September 2018, it would have been open to the sentencing judge to have found that the s 5 threshold had been crossed but to have imposed either a suspended sentence or an ICO to assist in his rehabilitation. [50] It is common for there to be delay in children complaining of sexual abuse. Often a reason for the delay is that the perpetrator of the abuse has threatened the child in some way that there will be negative consequences should the child complain of the sexual assaults. There is no material before the Court as to whether the victim's grandfather made such threats but there is certainly no evidence before the Court that the applicant did. This is no small matter. It is one thing for an offender, such as this applicant, to rely upon delay as a mitigating factor but it is another for an offender whose threats prevented a young victim from coming forward earlier to then seek to rely upon the subsequent delay in mitigation".
6. The last passage from her Honour's observations does not assist the offender since, I have accepted that at least in the instances of victims LM and RW, there were threats of negative consequences to the young children if they complained about the abusive conduct.
7. Nevertheless, I except that there has been circumstances beyond the offender's control, which have caused delay and which may be treated as a mitigating factor, albeit to a limited degree.

Hardship in detention or custody

1. Dr Dayalan considers that the offender's cognitive impairment; as well as the nature of the charges, would make any time spent in custody more onerous. Dr Dayalan was influenced in this view by what he was informed by Mrs Pethybridge when he spoke with her. In one of the character references that was before Judge Frearson in 2018, Mrs Pethybridge had earlier commented upon the offender's physical and mental struggles whilst on remand.
2. The Crown acknowledged that an offender's ill-health may be relevant where it is established that imprisonment may be more burdensome to the offender's health, or even exacerbate his, her or their ill-health. Nevertheless, the Crown noted that hardship that would be endured by an offender who is subject to a custodial penalty is the responsibility of prison authorities, who are expected to take reasonable steps to alleviate hardship on account of an offender's ill-health. So much may be accepted, but the point does not undercut the force of Dr Dayalan's view and I accept that his cognitive impairment would make time spent in custody more onerous. How much more onerous it would be, given the nature of his impairment, is a matter for some speculation.
3. Dr Dayalan also opined that any sentence involving custody in a correctional centre would not only stifle his access to treatment for his health conditions, but also expose him to a greater risk of contracting COVID-19. The Crown did not dispute this factor and I also accept it.
4. Wherever the offender is detained, I expect that the COVID-19 risk will be elevated, in comparison to the risk he would face if he was not detained, even if, as of today, at the date of 'sentencing', restrictions have eased. The experience of this Pandemic since March 2020 has shown that new strains can emerge unexpectedly with a consequent reaction from government. The possibility of social distancing restrictions being re-imposed is not fanciful and for a person of the offender's age, particularly onerous. I accept that hardship to the offender has been established in these two respects. They would ordinarily moderate the force of specific deterrence, and the adequacy of punishment although, for reasons indicated also elsewhere, the salience of those considerations are substantially negated in any event given the offender's cognitive impairment.
5. Counsel for the offender appeared to also suggest that the offender would suffer additional hardship at the prospect of his wife's grief about their prospective separation. I am not convinced that, even with allowance for the offender's age and the length of his successful marriage to Mrs Pethybridge, and his obvious attachment to her, that his anticipated grief should be characterised as hardship and I am mindful, in particular, of his mental condition.

Hardship to third parties

1. The offender's Counsel submitted that hardship would be suffered by Mrs Pethybridge, aged 87, who suffers life-threatening cardiac issues, from the offender's incarceration. When the matter came before me in August, she was expected to undergo open heart surgery and will need (if all goes well with the surgery) a lengthy period of recovery.
2. Notwithstanding his cognitive impairment, the offender chips in with assistance to some domestic chores and ordinarily would be expected to render practical assistance to her during her recovery and certainly emotional support.
3. A report by a cardiologist, Dr Chung, dated 18 August 2022 was relied upon. In that report, the practitioner diagnosed Mrs Pethybridge as having severe calcific aortic stenosis, and was awaiting a surgical procedure in the nature of an aortic valve replacement. I note however, almost three months on, the Court has not been provided an update from Dr Chung.
4. Counsel for the offender acknowledged that this did not rise to the level of 'exceptional circumstances', the standard conventionally applied when a sentencing judge evaluates this factor, but it was referred to nonetheless. But in view of the offender's Counsel's concession, it is not obvious to me how else this matter could be relevant to the exercise of the discretion.

Specific deterrence

1. Counsel for the offender submitted that this sentencing consideration cannot apply given the cognitive impairment developed subsequent to the offending. She cited the decision of Choong v R (apparently an unreported and a decision which I was not able to locate myself), where the brain injury occurred after conviction, but before sentence. There is a point of material factual difference here: the brain injury occurred after the commissioning of the offences and before conviction, but it remains true that it occurred before sentencing.
2. Nevertheless, I agree that for an offender with this person's medical condition (and age), specific deterrence is inapplicable.

Truncated sentencing

1. There is a difficulty for sentencing judges which is prevalent for offences of this kind, which only come to light and are prosecuted many years after the event, but only in fits and starts. That is to say, where an elderly accused is charged, convicted and sentenced for a group of offences, then released; but because of difficulties for investigators, other suspected offences emerge only subsequently, which are then investigated in turn, and lead to the same offender being charged, convicted and sentenced for other offences; and facing the ominous prospect of further incarceration. An issue arises as to the extent to which the later sentencing court should take into account sentencing for the earlier offending. That type of case was recently considered in R v Obbens [2022] NSWCCA 109. Hamill and Dhanjii JJ (Basten AJA concurring) said (at [18]) that the real question, which might more properly be categorised as one of proportionality rather than totality, is whether the total sentencing outcome could encompass the whole of the criminality.
2. Whilst alluding to observations made in the decision of a differently constituted Bench in R v Cattell [2019] NSWCCA 297, effectively, that delay in prosecution of sexual offences is not mitigating where it allows an offender the opportunity to participate in the community to which he is not entitled, their Honours distinguished the case before them, with the circumstances that arose in Cattell by pointing out (at [20]), in substance, that where the sentencing exercise was for offences that had subsequently come to light after an earlier sentence, it was a foregone conclusion, having regard to the nature and number of the offences, that a sentence of full-time imprisonment was the only appropriate sentencing alternative.
3. Reconciling the circumstances in which delay may not be treated as a mitigating factor in cases of historical sexual offences with the totality principle, where the offender had already been punished (and incarcerated) for earlier offences, the Court of Criminal Appeal also said that his second delay (that is, the period after the earlier sentence has been served but before other offending came to light) was unlikely to be a period in which the offender lived an opprobrium free life and, with the potential for a return to imprisonment, additional stress and disruption resulted which would not have been suffered had all the offending been dealt with together. Returning to prison to serve a separate sentence would likely involve a significantly greater punishment than if the first term of imprisonment was longer because all of the offences were dealt with together: [20]. Their Honours (at [21]) adverted to the observations of Street CJ in R v Todd [1982] 2 NSWLR 517 at 519-20 where emphasis was placed upon a consideration of fairness to the offender playing even a 'dominant' role in determination of what sentence should be imposed in such cases.
4. I am mindful of these principles.

Instinctive synthesis

1. Section 63(5) of the MHCIFP Act indicates the limitations in the exercise in setting a penalty, which I have taken into account.
2. I take into account the maximum penalties for the dates that the offending occurred.
3. I propose to set a penalty with reference to s 25AA(1) of the CSP Act and, consistently with the requirements of s 25AA(3), do so after taking into account the trauma of sexual abuse on the victims.
4. In particular, I have to consider whether, having considered all possible alternatives, no penalty other than imprisonment would have been appropriate. The Crown submitted that imposition of a limited term is warranted. The offender's Counsel conceded that this was so.
5. I also take into account the considerations in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). This is a case, like AB, where the consideration of imposing an adequate punishment, so as to bring home to the offender the gravity and consequences of his conduct, has limited or no utility. So too, because of his condition, the concerns of specific deterrence, protection of the community, retribution and promoting his rehabilitation have little or no utility. In my view, the salient considerations are general deterrence, denunciation of the offender's conduct and recognition of the harm to the victims.
6. These considerations remain significant notwithstanding the offender's cognitive impairment. As the High Court explained in Muldrock v The Queen (2010) 244 CLR 120 at [54], the reason why general deterrence (and the related considerations of denunciation and retribution) is substantially moderated for an offender with a mental abnormality is that the person lacked the capacity to reason, as an ordinary person might, to the wrongfulness of the offending conduct. That consideration does not apply to this offender who was not shown to have lacked such capacity at the dates of his offending. I also give some weight, although it is limited, in the offender's favour, for what is likely to be the distress and apprehension from his being detained and isolated (especially from his wife) again, after having served an earlier sentence. Further, the experience of detention itself is likely to be more onerous for someone with his condition.
7. Nevertheless, given the gravity of the individual offences alone, let alone in combination, for the purposes of s 63(2) of the MHCIFP Act, I would have imposed sentences of imprisonment if the special hearing had been an ordinary trial of a criminal proceeding and the offender had been fit to be tried for the offences.
8. I am conscious of the principle of totality. There were five separate victims. Charges 1 and 2 occurred, at or about the same time. So too did charges 7 and 8, so substantial concurrency is warranted to that extent. Nevertheless, because of the multiplicity of victims, and the many different dates for the offending, as the Crown submitted, there must be some accumulation before the Court ultimately arrives at a result which will reflect the offender's criminality overall. I reiterate my consciousness of the offender going back into some form of detention after earlier spending time in incarceration for other charges.
9. No aggregate sentence can be imposed to address the offender's overall offending (CSP Act, s 54D(1)(b)).

Prior custody

1. As to s 63(5)(c), the parties were at issue on the question whether the offender did not serve time in custody prior to the special hearing. The Crown appeared to have initially argued that he had not.
2. The offender's Counsel argued that he had. The offender's Counsel referred me to the history concerning prosecution of the subject offences, which had featured two previous trials and one successful appeal against convictions. The first of those trials involved the same 13 counts on the indictment, and the same five complainants and the same subject matter. The result of that first trial was 12 guilty verdicts (including one in relation to a count which I had determined the offender was not guilty on the limited evidence). The second trial involved, in contrast, 6 counts on the indictment, and only 3 complainants. (it was not suggested that any of the current victims were complainants in that trial). Guilty verdicts were reached on all 6 counts. Sentencing, following both trials, occurred on 21 November 2018 when the sentencing judge imposed an aggregate sentence in relation to all convictions. But in October 2020, the offender successfully appealed against convictions from the first trial; with the result that the counts on the indictment were remitted back to this Court for retrial and a re-sentencing for the offending for the second trial. The offender served the non-parole period in relation to the offending from the second trial. It is the re-sentencing by the Court of Criminal Appeal which occurred in October 2020 that I referred to earlier in these remarks.
3. Out of these facts, the offender's Counsel submitted that as at the date of re-sentencing in the Court of Criminal Appeal, the offender had been in custody from 2 August 2018 to 2 October 2020, serving an aggregate sentence in respect to a period for offending that related to both the offences from the first trial and the offences from the second trial. That period in custody was two years and two months and the offender's Counsel submitted that some part of that should be treated as prior custody, for the purposes of the current sentencing exercise referable to the same counts on the indictment and the same complainants (now victims) as concerned the first trial. The offender's Counsel submitted further that in the sentence that the Court is now to impose, it should be backdated in accordance with s 64(1)(a) of the MHCIFP Act. The offender's Counsel nominated a date, being 2 August 2018, to reflect totality and other sentencing principles.
4. The Crown appeared to adjust its position. Through its amended Crown sentence summary, it accepted that the offender had been in custody "for these and other matters" from 2 August 2018 to 10 May 2021. The Crown did not oppose some backdating, just not the entirety of the period sought by the offender. I propose to back date the limiting term to make allowance, but not a full allowance, in accordance with the offender's submission.
5. I impose individual limiting terms under s 63(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act as follows: Count 1 : limiting term of 1 year, commencing on 2 August 2019 and expiring 1 August 2020. Count 2: limiting term of 2 years, commencing on 2 November 2019 and expiring 1 November 2021. Count 3 : limiting term of 2 years and 6 months, commencing on 2 November 2021 and expiring 1 May 2024. Count 4: limiting term of 1 year, commencing on 2 May 2021 and expiring 1 May 2022. Count 7: limiting term of 2 years, commencing on 2 May 2022 and expiring 1 May 2024. Count 8: limiting term of 2 years, commencing on 1 November 2023 and expiring 31 October 2025. Count 9: limiting term of 4 months, commencing on 1 November 2025 and expiring on 28 February 2026. Count 10: limiting term of 2 years, commencing on 1 December 2025 and expiring 30 November 2027. Count 11: limiting term of 1 year, commencing 31 May 2026 and expiring 30 May 2027. Count 12: limiting term of 2 years, commencing on 29 November 2027 and expiring 28 November 2029. Count 13: limiting term of 2 years and 6 months, commencing on 27 May 2028 and expiring 26 November 2030.

Referral

1. Pursuant to s 65(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Raymond Pethybridge is to be referred to the Mental Health Review Tribunal and these orders are similarly to be notified to the Tribunal.

Place of detention pending review by the Tribunal

1. By s 65(2) once a limiting term has been nominated, the Court "may" order that the defendant is "detained" in a mental health facility, correctional centre, detention centre or "other place" pending the defendant's review by the Tribunal.
2. The offender's Counsel placed before the Court a letter from Bupa Care services, which administers a care facility in Boronia Road, Greenacre (the 'Greenacre facility') dated 24 October 2022. A map for the Greenacre facility was also supplied. The letter and map are Exhibit 2. Amongst other things, the letter noted that the offender had commenced as a permanent resident of the Greenacre facility on 30 September 2022.
3. The offender's Counsel referred the Court to a decision of Schmidt J, under a predecessor provision (that is, s 27(b) in the Mental Health (Forensic Provisions) Act) to s 65(2) of the MHCIFP Act, being R v Wilson (No.6) [2019] NSWSC 529 ("Wilson"). Nevertheless, Counsel submitted that the force of her Honour's reasoning applied to the construction of s 65(2) and, in particular, submitted that this Court should: (a) accept that the expression 'other place' in s 65 means the same as the expression 'a place other than (a mental health facility)' which had appeared in the earlier provision and (b) accept that the Greenacre facility satisfied the current definition of 'other place'.
4. In Wilson Schmidt J (at [35]-[52]) interpreted the concept of 'detention' under the former s 27(2)(b) as requiring proof of a place where "a restraint (is) imposed on the person's liberty", being a place "from which he or she will not be free to leave".
5. The letter from Bupa relevantly indicated that there was one main entrance and exit to the facility that was only capable of being opened on the inside by the use of passcode. There were 84 CCTV monitoring cameras around the facility.
6. The offender could access all communities and areas of the home including the secured outdoor gardens. Like most of the residents in the Greenacre facility, he did not have access to the Memory Support Unit (a secured community). Subject to his compliance with behavioural expectations, if ordered to do so, he could continue to be accommodated at the Greenacre facility if ordered to do so.
7. The offender's Counsel submitted that the Court should infer that the offender would be locked in; although acknowledged that he could leave in the company of staff, say, for a medical appointment.
8. Most of the debate that occurred in the sentencing hearing concerned the place for the offender's interim detention. The Crown opposed the Greenacre facility as such a place and the offender, in turn, opposed the alternative that the Crown had offered.
9. Ms Crown submitted that the letter (Exhibit 2) suggested that there was nothing to stop a visitor from taking the offender away, which meant that the facility could not be regarded as an adequate place for detention. The Crown relied upon an affidavit of Harrison Woods (Exhibit B), a solicitor within the ODPP, in which he deposed, on information and belief based on what he was told by an employee of the Forensic Division of the Tribunal, firstly that the period of interim detention could be up to 3 months or a significant period. Secondly, again based on what the same employee informed him, Mr Woods deposed to his belief that the Aged Care Rehabilitation Unit at Long Bay Correctional Centre had suitable facilities for the offender who suffered from dementia.
10. The Crown's alternative was opposed. Ms McSpedden argued that there was no proof that the Aged Care Rehabilitation Unit had a vacancy for the offender to take. This debate caused Counsel for the offender to call the author of Exhibit 2, Ms Vilmaz, who was cross-examined.
11. Ms Vilmaz said that if the offender was the subject of an order for detention, he could not leave the facility without a member of staff releasing him. He had, subject to one particular location within the facility, generally free rein to roam the facility, including the garden and courtyard, but he had no means of exiting through the garden and courtyard. In the event that he had a medical appointment, for a fee, staff could arrange for him to be escorted through Uber for such appointment. Ms Vilmaz indicated that she was not familiar with the language of 'limiting term'. Nevertheless, she did indicate that the facility had previously had experience where a patient was subject to court-ordered restrictions on liberty.
12. In cross-examination, she said that visitors could generally enter in business hours - no more than 2 at a time. She explained that if someone asked to take a patient out, they would need to supply an explanation to the facility's clinical team. She said that the facility was staffed 24 hours a day: there was always a registered nurse on the lookout. If a visitor entered the facility, the visitor would be screened and would be escorted out by the staff member. She indicated her view that a visitor could not leave without access.
13. After Ms Vilmaz completed her evidence, the Crown was given the opportunity to make inquiry in response to Ms McSpedden's point about the availability of a spot for the offender in the Aged Care Rehabilitation Unit at the Long Bay Correctional Centre. Ms Crown explained to me that, following a conversation with Mr Lee, the Nursing Unit Manager at the Long Bay Correctional Centre, there was presently no availability in the Aged Care Rehabilitation Unit. Instead, the offender would have to be detained in the Medical Surgical Unit until an assessment by Justice Health was completed and a vacancy came up in the Aged Care Rehabilitation Unit. This could be a couple of days, if not months. I am satisfied that the Greenacre facility is a 'other place' for the purpose of s 65(2).
14. Pursuant to s 65(2) of the Mental Health Act and Cognitive Impairment Forensic Provisions 2020 pending review of the Mental Health Review Tribunal, Raymond Pethybridge is to be detained in the Bupa facility at 171 Boronia Road Greenacre.
15. I direct further that Raymond Pethybridge is to be returned to the Bupa facility at 171 Boronia Road, Greenacre, forthwith, and in default of complying with such direction, a bench warrant will issue.

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: 28 October 2022