R v Ryan

Background:

1. On 18 February 2019 Vincent Ryan stood trial on five counts in an indictment. He pleaded not guilty to: 1. Two allegations (Counts 1 and 2) that he indecently assaulted MB. Each count alleged that between 1 January 1973 and 24 December 1974, at The Junction, he assaulted MB and committed an act of indecency on him. 2. Counts 3 and 4 alleged that between 1 January 1987 and 31 December 1988, and between 1 January 1988 and 31 December 1990, at Cessnock, he did assault SH, a person under the age of 16 years and at the time of the assault committed an act of indecency on SH, who was at that time under the authority of the accused. 3. Count 5 alleged that between 1 January 1990 and 31 December 1991, in Cessnock, the offender did attempt to have sexual intercourse with SH, a person then above the age of 10 years and under the age of 16 years, and under the authority of the accused.
2. The trial proceeded by way of judge alone, and on 14 March 2019 I found the offender guilty on Counts 1 to 4, and not guilty on Count 5. Counts 1 and 2 carry maximum penalties of five years imprisonment. Counts 3 and 4 carry maximum penalties of six years imprisonment.

Factual Findings and Objective Seriousness:

1. In determining the facts upon which I sentence the offender I must have regard to the verdicts. I must resolve any dispute in light of the evidence adduced at trial although any such resolution by me is limited to matters collateral to the elements of each offence. I am not restricted to a view of the facts most favourable to the offender, however any aggravating factors must be established beyond reasonable doubt.
2. I proceed to set out my findings as they impact upon an assessment of the seriousness of each offence. During the proceedings each counsel made submissions using the language of where the offences fall referable to the middle of the range of objective seriousness. The offences are not subject to the standard non-parole period regime. There is no requirement upon me to identify the appointment of objective seriousness referable to a notional point on a spectrum of culpability.
3. I must of course set out my findings in respect of the seriousness of the offences. In doing so, I have decided, in an effort to be consistent, to set out my findings as to whether the offences fall below above or at the middle of the range of objective seriousness. But, to be clear, my findings in that respect are not meant to convey anything but the abhorrence with which the Court views offences of this type.
4. Whether I take into account the offender's position of authority and related breach of trust as an element of the offence or as a separate aggravating factor pursuant to s 21A of the Crimes (Sentencing Procedures) Act 1999 (NSW), clearly the fact that the offender was a priest at the time he abused the victims makes his offending conduct very serious.
5. The seriousness of such conduct was articulated by Rummery DCJ when he sentenced the offender in respect of previous sexual crimes against other children. He said that those offences were a most serious breach of trust by a person who is a priest of the Catholic Church who held and exercised significant privileges and responsibilities.
6. In the judgment of the High Court relating to an appeal by this offender in respect of a prior sentence, Kirby J noted that the offender, as a priest, had accepted the teachings of his church and had sinned against those teachings; he had accepted an obligation to minister to those within his congregation, including the children, and had failed to meet his obligation; that he had undertaken the responsibility to give counsel and to provide guidance to those who were altar boys and servers and he rejected his responsibility: Ryan v R (2001) 206 CLR 267 at [69]. Those observations are relevant to the present sentencing proceedings.
7. In my judgment dated 14 March 2019 I indicated that I was satisfied that by 1996, when interviewed by the police, the accused's attitude had changed and he was making an effort to disclose as much of his offending conduct as he could remember. He had disclosed sexual offending against 17 children, information that the police were unaware of. That he did so is cogent evidence that he was generally motivated by a desire to disclose to the police what he could remember of his offending conduct during that interview: [302].
8. I did not accept the accused's evidence that he remembered every victim because he repeated their names during a process of self grooming. I was satisfied that there were names of victims he had forgotten, initially denying any wrongdoing but subsequently either pleading guilty or acknowledging his guilt in relation to that wrongdoing.
9. I determined that having regard to the offender's previous pleas of guilty to sexually abusing some 34 separate victims on hundreds of occasions, it is reasonably open that he failed to remember sexual offending against a particular victim especially where that offending was the type of conduct that he had engaged in regularly, for example acts of indecent assault in circumstances where he reacted opportunistically: [308].
10. Lest it be unclear and in an effort to express my findings with clarity I proceed to sentence the offender on the basis that it is more likely than not that he pleaded not guilty to the present offences because he did not remember the incidents of which MB and SH complained. Had he remembered these events it is more likely than not that he would have disclosed that offending conduct to the police in his police interview where he disclosed significant offending conduct against other children, information that the police had no knowledge of.
11. In these circumstances I am satisfied that his denial of the present offences is not a product of deliberate lies but rather a failure on his part to recall these crimes in circumstances where the allegations were made decades after the conduct took place and in the context of high level sexual offending against many children over an extended period of time.

Offences against MB

1. The offences against MB were committed between 1973 - 1974 when the victim was aged 10 - 11 years old.

Count 1

1. On a Saturday morning, MB went to St Joseph's Church pursuant to an arrangement made for him to try out to be an altar boy. He was sent to the sacristy of the church to await the offender. In the privacy of the sacristy the offender proceeded to tickle MB under his arms and back and then put his right hand inside MB's shorts and masturbated him whilst he was engaged in self-masturbation. This incident lasted 2 - 3 minutes and caused MB to ejaculate, which was the first time he had experienced ejaculation.

Count 2

1. A week or so following the first incident, the victim MB received a message to see the offender after school and he went to the sacristy as required where the offender showed him some pornographic magazines prior to putting his hand under MB's clothing and masturbating him for a couple of minutes. The acts perpetrated against MB involved skin on skin contact thereby making the offences more serious than acts of sexual touching committed over clothing.
2. The Crown urges me to find a number of aggravating features in respect of each of these offences. In relation to Counts 1 and 2 the Crown specifically submits that I would find the following aggravating features: 1. The offences were planned and organised because they involved a degree of grooming as evidenced by the fact that that on the first occasion the offender gave the victim wine to drink for the purpose of lowering his inhibitions, making it easier for the offender to have sexual contact with the victim. On the second occasion, the grooming took the form of showing the victim pornographic material in an effort to make the victim more compliant. On behalf of the offender, Mr King submits that I would not be satisfied beyond reasonable doubt that the offender gave the victim wine or showed him pornography in an effort to facilitate the offending conduct. Having observed MB give evidence I was satisfied that he is both an honest and accurate witness who impressed me as an individual who gave reliable evidence. I am satisfied that on the first occasion he was given wine to drink. However, the degree to which that act supports a finding of planning or organisation is reduced having regard to the fact that I am satisfied that the wine was kept in the sacristy in connection with the service rather than being specifically brought into the sacristy for the purpose of offering it to the victim with the intention of lowering his inhibitions. Put another way, I am not satisfied to the requisite standard that this offence involved planning or organisation such as to constitute an aggravating factor. I am satisfied that the offence was opportunistic. In respect of Count 2, I am satisfied that the offender showed the victim pornography in an effort to make him more compliant. This act did involve a degree of deliberation. The pornography was present in the sacristy, used in connection with sexual misconduct. This is not an item that could have been used in connection with the normal duties undertaken by the offender. I am also satisfied that on this occasion the offender requested to see the victim after school. This offence was not impulsive. A degree of deliberation was involved and as such is more serious than Count 1. However, the offence is unsophisticated and does not involve a degree of planning or organisation such as to constitute a separate aggravating factor. 1. MB was a child at the time the offences were committed. There is a conceptual overlap between age and vulnerability. MB was about 11 years old and interacted with the offender in the absence of the immediate protection of his parents or guardians. I have taken into account the age and associated vulnerability of the victim as an aggravating factor in respect of both Counts 1 and 2. 2. In determining the objective seriousness of Counts 1 and 2 I have also had regard to the fact that the offender was in a position of authority. He was a priest who held a position of moral authority in the church, school and his local community. A relationship of trust existed between the offender and the victim. This relationship was betrayed in the most egregious way. Again, there is a degree of overlap between these aggravating factors and I am careful not to give these factors disproportionate weight. Unlike Counts 3 and 4, these factors are not elements of the offence and I have taken them into account as separate aggravating factors in determining the objective seriousness of these two offences.
3. In respect of both Counts 1 and 2 I find that the offences fall within the middle of the range of objective seriousness although I am satisfied that Count 2 is more serious than Count 1 because it involved a greater deal of deliberation on the part of the offender.

Offences against SH

1. The offences against SH were committed between 1987 - 1989 when the victim was aged 10 - 12 years old.

Count 3

1. On an occasion between January 1987 and December 1988 SH was present at an altar server night at St Joseph's Cessnock. He was alone with the offender watching a video. Other altar servers had been present but had moved away. The offender and SH were sitting on a lounge, and the offender rubbed SH's leg for about 30 seconds and then rubbed his penis outside his clothing. The offender told SH this was normal, and SH then moved away.

Count 4

1. Some time after this incident, and on an occasion that took place between January 1988 and December 1990, SH was in the sacristy at St Joseph's after a funeral at which he had served. He was upset and the offender came up behind him, rubbed his shoulders and then put his hands inside SH's shorts and underwear and rubbed his penis whilst rubbing his erect penis on the victim's back. This incident lasted about a minute.
2. Elements of age and the offender occupying a position of authority are included in Counts 3 and 4. I do not take into account those features as separate aggravating factors. My remarks set out above in relation to the seriousness of such conduct committed by a person in authority in breach of a relationship of trust are equally relevant to my assessment of the seriousness of the crimes committed against SH.
3. He was well under the age of 16, namely between 10 and 12 years old. In determining the objective seriousness of these offences I have had regard to the fact that the victim was well under the age of 16.
4. I am not persuaded that the offences involved planning and organisation such as to constitute an aggravating factor. Rather, in each case the offence was opportunistic.
5. I pause to note that the offender's conduct on each of the four occasions was brazen and arrogant in nature. It seems to me that planning and organisation was not perceived as necessary. These crimes were committed at a time when those who entrusted their children to the offender would have been unlikely to believe that he was capable of such abhorrent conduct. Some of the offences involved more deliberation than others, for example, Counts 1 and 2. But they did not involve planning or organisation such as to constitute an aggravating factor.
6. Count 3 did not involve skin on skin contact. It lasted for a very brief time. Having regard to all of the circumstances giving rise to this offence I am satisfied that it falls well below the middle of the range of objective seriousness for this offence category. In making that determination I have had regard to the fact that the offence was committed by the offender at a time when he held the position of authority and when the victim was very young and vulnerable.
7. Count 4 involved the offender placing his hand inside the victim's underwear in circumstances where he was masturbating the victim and himself simultaneously. He committed this act in circumstances where the victim was clearly distressed as a result of being present at the burial service. The offender was purporting to comfort him while sexually exploiting him. I am satisfied that this offence is more serious than Count 3 falling in the middle of the range of objective seriousness.

Impact Upon the Victims

1. The Crown submits that I would find as a further aggravating feature that the psychiatric injury and emotional harm to the victims is substantial. The Crown submits that the psychiatric harm to the victims goes beyond that which one would ordinarily expect to occur as an inherent characteristic of these offences.
2. A victim impact statement was read out by MB during the sentence proceedings setting out the significant impact of the offender's conduct upon him. MB describes that impact as including feelings of low self-esteem and disgust, shame and personal disgrace. The impact has had an ongoing effect upon him including a detrimental impact upon his relationship with his son.
3. I accept that MB has suffered the psychological and emotional trauma that is often associated with the experience of being a victim of childhood sexual abuse. He has lost his faith in the church and has struggled with personal relationships.
4. SH has not provided a victim impact statement but during his evidence in the trial, SH recounted the impact of the offender's conduct as including losing his faith in God and the church; believing that he had brought things on himself and that he was somehow to blame. He attempted self-harm on a number of occasions and was admitted to hospital. SH spoke of the negative impact upon him of keeping these experiences secret.
5. Clearly, SH has suffered the psychological and emotional trauma often associated with being a victim of childhood sexual abuse.
6. Today there is much greater understanding of the devastating impact of sexual offending on child victims. I note the comments of the Royal Commission into Institutional Responses to Child Sexual Abuse (Vol 3. p. 77): "Traumatic events such as child sexual abuse are understood as 'extraordinary, not because they occur rarely, but rather because they overwhelm the ordinary human adaptions of life, experiencing these traumatic events increases a child's susceptibility to developing a range of neurological, social and physical health difficulties across their lifespan…"
7. The Commission found that child sexual abuse can affect many areas of a victim's life, including their mental and physical health, interpersonal relationships, sexual identity, spirituality and religious involvement. In relation to the latter, this is particularly affected where the sexual abuse has occurred in an institution, resulting in a loss of faith and involvement with their religious community. The description of the psychological and emotional suffering endured by MB and SH is the very type of suffering that the Royal Commission found to have been experienced by many of the victims of childhood sexual abuse.
8. I am satisfied that the victims here have suffered a great deal as a result of the offender's criminal conduct. It is a sad and unfortunate reality that victims of this type of criminal conduct do suffer the type of emotional and psychological distress that the victims have suffered.
9. It is precisely for this reason that offences of this type warrant condign punishment. Denunciation and punishment are important factors in determining an appropriate penalty. However I am not persuaded, to the requisite standard, that the harm constitutes a separate aggravating factor.

Purposes of Sentencing

1. Children are entitled to grow up free from defilement by sexual offenders and free from risk of psychological upset, confusion and difficulties in later life caused by such trauma. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm caused by premature sexual activity. Child victims are especially vulnerable and it is important that sentences are imposed which recognise the harm done to the victim. Acknowledging the harm done to the victims is an important purpose of sentencing particularly in cases of this type. Furthermore, the offender must be punished for his offences notwithstanding the fact that they took place several decades ago.
2. The offender's conduct must be wholly denounced. A penalty has to be imposed that reflects the community's abhorrence of this type of criminal conduct and deter other likeminded offenders from engaging in the sexual exploitation of children. General deterrence is also a relevant and important purpose of sentencing that must be reflected in the sentence I impose.
3. Having regard to the offender's subjective case, which I will summarise in due course, I am satisfied that he is rehabilitated and is unlikely to reoffend. The weight to be given to specific deterrence is significantly moderated. Furthermore, I am not of the view that he poses a risk to the community and the weight to be given to the protection of the community as a sentencing imperative is also significantly reduced.

Background

1. The offender is 81 years old. He was born and raised in East Maitland. He was exposed to extreme domestic violence during his childhood, violence perpetrated by his father upon his mother. Although he felt loved by both his parents he became frightened of the aggression demonstrated by his father and became withdrawn. His father was dependent on alcohol. He drank to excess and became violent. He sometimes threatened to commit suicide. Not only did he cause terror in the home but was also a source of shame for the family.
2. The offender was visibly distressed when he gave evidence about his father's alcoholism and the trauma it caused during childhood. Having observed the offender give evidence about that background and read the psychological material, I am satisfied that his father's alcoholism and violence had a profoundly adverse impact upon the offender.
3. As a child the offender was sexually abused by an older child. His earliest memory of this abuse was at the age of 8, however the abuse commenced at a younger age and continued until well into his adolescence. The perpetrator was an adult by the time the abuse ceased. These sexual interactions were initially aggressive however in the interview with Dr Webster the offender states that he came to find the physical sensations as pleasurable. The offender struggles to see that this was an abusive relationship. Dr Webster notes that the offender never expressed a harsh word about his abuser, who Dr Webster believes harmed him gravely.
4. After completing schooling the offender went on to commence training for the priesthood in 1958. After studying for four years he went to the Manly Seminary for one term before travelling to Rome to complete a Theology Degree in October 1962 where he remained until 1966.
5. Following his ordination he remained in Rome to complete a Doctorate in Canon Law and was temporarily appointed to parishes in New York and London before returning to Australia at the age of about 32.
6. Upon return to Australia after over ten years of living overseas the offender was first appointed to Singleton Parish, and subsequently to seven other parishes. This included appointment to St Joseph's of Cessnock and St Joseph's of Merewether during the period of relevance to the offences for which he is to be sentenced.

Effects of Childhood Trauma

1. The psychological report of Dr Gerard Webster notes that infants and small children who are exposed to violence in the home often experience problems in their neurological cognitive and sensory development. Dr Webster cites research that divides the negative psychological and behaviour effects on children into two categories, namely "internalising and externalising". While some may externalise this trauma through antisocial behaviour and increased aggression, the offender internalised this trauma which manifested itself as depression, loneliness, low social competence, and a pervasive fear among other symptoms.
2. Dr Webster opines that the offender gave expression to aggressive and antisocial dimensions of his personality by sexually abusing children, although at the time of the offending he did not see it this way.
3. Dr Webster summarises some research on the effects of child sexual abuse upon victims. One study (Cashmore & Shackel (2013) cited findings that child sexual abuse is associated with a diverse range of negative outcomes, experienced by child victims in both the short and long term. Strong evidence now exists to justify the assertion that child sexual abuse has a deleterious impact on the child victim's mental health and functioning, behaviour, interpersonal and social functioning, educational outcomes, and physical health and brain development.
4. In research conducted by Rich (2003) it was found that adult offenders who sexually abuse children are most likely to have been exposed to domestic violence and most likely to have been sexually abused as a child. The offender was traumatised by both forms of abuse. The cumulative effect of different types of adverse experiences in childhood is also now confirmed by a substantial body of research. Dr Webster opines that the offender's exposure to domestic violence resulted in internalising features to his personality that resulted in him burying stress when it came his way. The offender's experiences of sexual abuse created the preconditions for the sexual offending committed later in life.
5. Of course not all victims of sexual abuse go on to become perpetrators. The fact that the offender was himself a victim does not excuse his conduct. However, that background does place his offending conduct in its proper context particularly having regard to the psychological evidence.

Previous Offending and Rehabilitation

1. The offender commenced abusing children in 1972 soon after his return to Australia. These crimes remained hidden until a complaint was made to his Diocese in 1975 and upon the direction of church authorities the offender was made to participate in a 12 month treatment program at the National Pastoral Institute in Victoria. It appears that this program provided no assistance to the offender in developing insights or strategies to deal with his sexual attraction towards children.
2. While the offender was sexually attracted to children he was also "filled with guilt" in relation to his sins, and knew his behaviour was criminal but did not consider it to be harming any of his victims. He reported being aware that he was breaking a Commandment of his faith and lived in fear that he would be condemned to hell. However clearly this fear was not sufficient to impact upon his entrenched pattern of offending against his victims.
3. In 1996 after the offender was sentenced following pleas of guilty to 11 charges, with a further nine offences being taken into account on a Form 1 document. He was sentenced to six years imprisonment commencing from 23 May 1996, with a non-parole period of four years. Following significant publicity associated with that case, three additional victims came forward to police and in August 1996 the offender was again interviewed by police.
4. During that interview the offender admitted to abusing those three additional victims. He also volunteered detailed information setting out his offending against a large number of previously unknown victims.
5. I do not punish the offender for running his trial in respect of the allegations relating to MB and SH. He was entitled to plead not guilty and put the prosecution to proof. Having done so he has demonstrated no remorse in respect of the present victims.
6. I am satisfied, however, that during his later interview with the police in 1996, the offender was doing his best on that occasion to disclose to police the entirety of his offending conduct as he remembered. Much of the criminality disclosed was unknown to the police. I am satisfied that by that stage the offender was contrite for his offending conduct. That remorse is relevant to his prospects of rehabilitation.
7. Following this interview the offender was charged on indictment with 14 additional offences involving 12 separate victims. He pleaded guilty and admitted a further 39 offences which were taken into account when the Court sentenced him in the 1997 sentence proceedings. The total number of victims he was sentenced for abusing on that occasion totalled 28.
8. The total effective sentences served by the offender as a result of the sentences imposed in the separate sentence proceedings was 18 years imprisonment dating from 23 May 1996. The total non-parole period imposed was 14 years imprisonment dating from 23 May 1996 and expiring on 22 May 2010. Ultimately the offender served 14 years 2 months and 17 days in custody and was released on parole on 9 August 2010.
9. Prior to sentencing in 1996 for other sexual offending against children the offender engaged in counselling with a Dr Gray. Dr Gray notes that while the offender acknowledged guilt from the outset he showed little capacity to understand the impact of his behaviour on his victims. Instead the offender viewed the events as if he were a young child playing with other children. Progress was made over the course of 28 sessions leading Dr Gray to believe that the offender would not reoffend provided he was able to benefit from ongoing support and encouragement of his community.
10. In the psychiatric report of Dr Westmore prepared for the offender's sentencing in 1996 he notes that the offender acknowledged that sexually abusing the victims was wrong in the eyes of the law and church, however he indicated that he did not believe he was harming the children. He felt his relationship with them was positive and saw himself being of equal power to his victims. Dr Westmore diagnosed the offender with paedophilia but did not believe that this pattern of offending suggested that he was likely to reoffend.
11. The conditions under which he was incarcerated were onerous. The offender was subject of threats and violence. He recognises that his 14 years in prison were crucial to his rehabilitation. It took several years before he was able to begin to understand why correctional officers and other inmates hated him, and some further years until he was able to recognise the terrible harm he had inflicted upon his victims, their families, his family, and the Church.
12. For 13 of the 14 years the offender was in custody Correctional Services offered little in the way of programs, however in his final year in custody the offender undertook a 12 month evidence based group treatment program for sexual offenders. His successful completion of this program was influential in the decision to release him on parole, which occurred on 9 August 2010.
13. In the treatment report authored by Department of Corrections psychologist Michelle Turp in 2010 it is noted that the offender was motivated and actively worked towards treatment goals. However concerns were held about issues around entitlement and he was sometimes found to present as superior. Outside of sessions the offender tended to isolate himself and rarely engaged with corrections staff and other inmates.
14. Over the course of treatment the offender became more able to process criticisms and felt less threatened. He developed an understanding of the factors that supported his offending and was able to recognise a number of risk factors that exacerbated the likelihood of his offending. It is noted that the offender felt abandoned by the Church when they did not act more decisively to treat his sexual deviance earlier when his offending became known, leaving him in a position where he had contact with and authority over children.
15. Following the offender's release from custody he attended a weekly maintenance group conducted by Corrective Services, which is a post release program he was to participate in for the first 18 months of his return to the community.
16. In 2010, Dr Gerard Webster completed a risk assessment and considered the offender's needs for treatment. Dr Webster notes that from the outset it was clear that the offender had benefited from the treatment he received in custody. However at the time of his presentation it was also clear he was still suffering from the Depression and Generalised Anxiety Disorder he had experienced throughout his life.
17. Further, the offender was also experiencing Panic Attacks, secondary to Post Traumatic Stress Disorder that resulted from multiple assaults and other inhumane behaviour he sustained from both fellow inmates and corrections officers whilst in custody throughout the entire 14 years of incarceration.
18. The offender commenced long term forensic psychotherapy with Dr Webster, attending on a weekly basis. While the custodial treatment program the offender completed previously was successful in reducing his risk of recidivism, the psychotherapy with Dr Webster aimed to assist him in reducing his psychological symptoms and adjusting to life in the community as an elderly, retired man who was unfamiliar with city living. During these counselling sessions the offender was motivated to gain a deeper understanding about the events in his life that resulted in him being so deluded that he could harm so many people without being aware of the destructiveness of his criminal conduct.
19. Dr Webster notes that after the first 12 months of counselling the offender's post-traumatic stress symptoms were resolved as his sense of personal safety returned. The forensic psychotherapy also added greater weight to the understanding that the offender's crimes were the result of deviant sexual arousal and entrenched cognitive distortions that resulted from his exposure to domestic violence and sexual abuse throughout his childhood.
20. The offender accepts that these distortions were so severe during the period of offending that he was under the false belief that his acts were not harmful. He no longer believes that his victims benefited from the experience in any way and accepts that he was wrong to have considered this even possible in the past. It is also noted by Dr Webster that the offender is one of the most remorseful offenders he has worked with since he began treating sexual offenders over 30 years ago.
21. The offender denies ongoing experiences of sexual attraction to children. For a brief period he entered into a sexual relationship with a middle aged man and the two remain highly supportive of each other. This was a positive experience in the offender's life.
22. He does not pose any risk of reoffending, not due only to his advanced age, but to the successful rehabilitation that has occurred since his first arrest. Dr Webster opines that it is not necessary for the offender to continue receiving treatment for a reduction of his risk of recidivism as "it is barely possible to consider that it could be lower than is currently the case". I am satisfied that the offender is rehabilitated and is unlikely to reoffend.

Hardship in Custody

1. In an updated psychological report prepared for these sentence proceedings, Dr Webster expresses grave concerns for the offender's physical and mental health should he be returned to custody. While the offender is a far more psychologically stable person than he was in 1996, he has several current vulnerabilities that lead Dr Webster to opine that his experience in custody will be more onerous than that of other inmates. He has observed the offender to become more frail over the 12 months leading to April 2019. The offender is still capable of looking after himself in an apartment, however placing him in an aggressive environment will have potentially devastating consequences for his psychological and mental health.
2. As noted above, the offender's previous experience in custody was one characterised by the assaults he was subject to. It is highly likely that the offender's PTSD will return if he is returned to custody. Dr Webster notes that currently the offender experiences high levels of stress that impact upon his mental health as a result of these sentence proceedings, and the threat that he will lose all the community support he has built since his release. This includes a home to live in and friends to share his time with. The offender is also at an age where his lifelong personal supports and confidants are passing away so grieving their loss is an additional pressure. Notwithstanding this, Dr Webster opines that the offender continues to demonstrate a strong ability to manage this stress.
3. The offender has become increasingly frail over the previous 12 months, although is still capable of looking after himself. Dr Webster fears that taking him out of his home and placing him in the aggressive environment of a correctional facility will potentially have catastrophic impacts upon his physical and mental health.

Delay

1. The offender was first confronted with his offending conduct in October 1995. He was interviewed by Senior Constable Grant and made admissions to a number of offences against a number of victims. He then commenced seeing Mr Gray, consultant psychologist, for treatment. He began to develop insight into the nature and history of his pathology.
2. In 1996 he appeared before his Honour Judge Rummery who imposed various concurrent sentences with an effective total term of 6 years and a non-parole period of 4 years. As a result of the publicity that followed three further complainants came forward and made complaints to the police.
3. An appeal against inadequacy of sentence was dismissed by the NSW Criminal Court of Appeal in August 1996. On 27 August of the same year, the offender was reinterviewed by Senior Constable Grant in respect of the three fresh complaints.
4. It was during that interview that the offender made extensive and comprehensive disclosures about his sexual offencing against a further 17 children who had not made any complaint to the authorities. He was not confronted with the allegations made by MB and SH because it would be another 20 years before those allegations were made.
5. MB and SH made a complaint to police in 2016. By that time the offender had served his prior sentence including the non-parole period of over 14 years imprisonment. He completed the education for sex offenders program at Lithgow in 2000 and the PREP program in 2008. He completed the CUBIT program in 2009 and upon his release was closely monitored by the Department of Corrective Services. Electronic monitoring continued between 2010 and 2013. The offender's parole period expired on 22 May 2014 without further offending.
6. In R v Todd (1982) 2 NSWLR 517 the NSW Court of Criminal Appeal considered the effect of delayed prosecution upon an offender who had demonstrated significant rehabilitation in the time prior to the offences coming to light. In this regard the Court said that, where there has been a lengthy postponement, fairness to an offender requires weight to be given to the progress of his rehabilitation. As stated above, I am satisfied that this offender is rehabilitated and is unlikely to reoffend.
7. Passage of time between offences and sentence, when lengthy, may also lead to considerations of fairness to the offender in his present situation playing a dominant role in the determination of what should be done in the matter of sentence, at times this can require what might otherwise be quite an undue degree of leniency being extended to an offender: see R v Todd.
8. The approach enunciated by the Court of Criminal Appeal as to the way in which delay can be taken into account was approved by the High Court in the case of Mill v The Queen (1988) 36 A Crim R 468. I am bound by these authorities and am persuaded that fairness dictates that I extend to the offender a degree of leniency.
9. Section 25AA of the Crimes (Sentencing Procedure) Act 1999 provides that the Court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. The essence of this provision is that I am required to apply current sentencing patterns and practices having regard to what was described by the Attorney General in the Second Reading Speech as "our modern understanding of the trauma caused to children by sexual abuse".
10. In sentencing the offender I do not have regard to the sentencing pattern or practices as they existed in the 1970s and 1980s. However I am guided by the applicable maximum sentence and I do not have regard to the standard non-parole period regime. The applicable maximum sentences here are five and six years respectively.
11. But for the operation of s 25AA I would have had to take into consideration the fact that the Parole of Prisoners Act 1966 (NSW)(repealed) was in operation at the time the offences were committed and that the non-parole periods imposed were generally in the order of one third to half of the head sentence. That Act no longer applies.
12. It does not follow, however, that current sentencing practices preclude a variation of the statutory ratio so as to fix a non-parole period less than 50% of the total sentence. A discretion is retained to do so depending on the circumstances of the case.

Is full-time imprisonment the only option?

1. Does the leniency to be extended to the offender extend to a finding that a penalty other than imprisonment is appropriate having regard to the objective seriousness of the offences and the offender's subjective case? The Crown submits that it does not and that a term of imprisonment is the only appropriate option.
2. When I turn to consider s 5 of the Crimes (Sentencing Procedure) Act 1999, I have regard to what was said in the case of Mainwaring v The Queen [2009] NSWCCA 207: "Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences."
3. I am fully aware of the punitive nature of a term of full-time imprisonment particularly in these circumstances where the offender has already served a very lengthy period of imprisonment in the period between the commission of the offences and sentencing and where the offender is now 81 years old and fully rehabilitated.
4. Mr King, on behalf of the offender, has made considered, thoughtful and comprehensive submissions as to why I would proceed by way other than full-time imprisonment. He submits forcefully that the offender does not have to be returned to custody and urges upon me a course that would see the offender remain at liberty subject to a Community Corrections Order.
5. The difficulty with that submission, as taken up with Mr King during the course of the proceedings, is that in order to arrive at a view that Community Corrections Order is an appropriate penalty, I must be satisfied a term of imprisonment is not warranted. Put another way, Am I satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate: s5 Crimes (Sentencing Procedure) Act 1999.
6. In making that determination I am required to weigh all of the relevant matters in this case and then reach a conclusion adjusting an appropriate penalty that reflects the objective seriousness of the offences and the compelling subjective case that has been put forward.
7. Having given the matter a great deal of consideration and reflection and notwithstanding the offender's compelling subjective case I find that the nature of the offending is such as to warrant a term of imprisonment. A Community Corrections Order does not adequately reflect the seriousness of these offences.
8. The offences are prescribed sexual offences. An Intensive Corrections Order is not available as a sentencing option. Suspended sentences have been abolished.
9. Having determined that a term of imprisonment is the only option that can properly reflect all of the relevant features of this case bearing in mind the sometimes conflicting nature of the relevant considerations, it follows that the offender will be sentenced to a term of full-time imprisonment.

Totality

1. In determining the length of that sentence a primary consideration is the principle of totality. The Crown concedes that having regard to the principle of totality there must be a substantial or significant amelioration of what would otherwise be an appropriate term of imprisonment.
2. Mr King submits that, had the matters relating to these victims been disclosed in the 1990s, in all likelihood they would have been dealt with by way of placing them on the Form 1. It is further submitted that had this occurred it is highly likely that the severe sentence imposed by Nield DCJ would not have been affected, or significantly affected, by the inclusion of the present offences.
3. I am unable to make a positive finding that, had the offences relating to MB and SH been disclosed in 1996, in all likelihood they would have been dealt with by way of placing them on a Form 1 document. In any case, had these offences come to light earlier, and whether dealt with on indictment or on a Form 1, they are serious offences which would have warranted some modest but additional punishment.
4. Had the offender been sentenced for these offences by Nield DCJ, the sentencing judge would have evaluated, in a broad sense, the overall criminality involved in all of the offences and determined the extent of any downward adjustment to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
5. In determining the appropriate term of imprisonment I am also bound by the limiting principles that constrain a sentencing court, namely the principle of proportionality and the not unrelated principle of totality.
6. An assessment of the weight to be given to considerations of punishment, denunciation, retribution and general deterrence, must be made in the context of the following matters:

• The offender is to return to custody aged 81 years old and fully rehabilitated.
• He is to return to custody having already served a very lengthy term of imprisonment. Had these offences been disclosed earlier, in all likelihood he would have been dealt with for them at the time he received that lengthy term of imprisonment.
• A period of imprisonment will be more onerous on the offender having regard to his experiences in custody in the past and in particular, having regard to the psychological material setting out the grave concerns for his psychological and emotional well-being if returned to prison.

Special Circumstances

1. I am satisfied that special circumstances exist warranting a significant variation to the statutory ratio. Indeed I am satisfied that this is an exceptional case warranting a very marked variation to the statutory ratio.
2. I make that finding because the offender is now of an advanced age and the conditions of his custody will be more onerous upon him.
3. An extended period on supervision is warranted having regard to his excellent rehabilitation and the need for ongoing treatment to address his overall mental health upon his release to the community.
4. I have also had regard to the fact that there will be a measure of accumulation reflected in the aggregate sentence. Each offence discloses discrete criminal conduct warranting a measure of accumulation, albeit modest.

Determination

1. Accordingly, the offender is convicted of each offence.
2. I note the following indicative sentences would have been imposed for each offence: 1. For the offence of indecent assault (count 1), I indicate a sentence of 1 year 8 months imprisonment. 2. For the offence of indecent assault (count 2), I indicate a sentence of 2 years imprisonment. 3. For the offence of indecent assault on a person under the age of 16, under the authority of the offender at the time (count 3), I indicate a sentence of 1 year 3 months imprisonment. 4. For the offence of indecent assault on a person under the age of 16, under the authority of the offender at the time (count 4), I indicate a sentence of 1 year 8 months imprisonment.
3. Taking into account a finding of special circumstances, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 the offender is sentenced to an aggregate period of imprisonment of 3 years 3 months commencing on 22 May 2019 and expiring on 21 August 2022. I fix a non-parole period of 14 months commencing on 22 May 2019 and expiring on 21 July 2020.
4. The offender is eligible for release on parole at the expiration of the non-parole period subject to the guidance and supervision of Community Corrections for as long as they deem necessary.
5. I order the immediate return of the trial exhibits to the parties.

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