R v Stevenson

[2019] NSWDC 611

District Court of NSW|2019-08-02

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Court

District Court of NSW

Decision date

2019-08-02

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

INTRODUCTION

A notification from the Royal Commission into the Institutional Response to Child Sexual Abuse led to investigations into allegations a number of boys had been indecently assaulted in the 1970s by Warwick Stevenson, the offender. Stevenson was a youth leader with the Church of England Boys Society (CEBS) in southern New South Wales.
Statements were taken from eight men about incidents said to have occurred at CEBS between 1971 and 1979. In 2016 a number of charges were laid in relation to the eight complainants. Stevenson said he was not guilty and the matters were listed for trial at Wollongong District Court on 13 May 2019.
On 8 May 2019, after a preliminary hearing, I held that evidence from one of the complainants who is now deceased could not be led at trial: see R v Stevenson [2019] NSWDC 232.
On 10 May 2019, Stevenson asked to be re‑arraigned. Guilty pleas were entered to eight counts: others were discontinued and one was placed on a Form 1. The matters were listed for sentence today. Stevenson was allowed bail to prepare for what he knew would be a full time custodial sentence.
Today I received Victim Impact Statements from a number of the complainants. One was read to me by the complainant. Each will be considered and taken into account when I synthesise all relevant matters. The Crown also tendered on sentence a report from Dr Kenny that was before me on the voir dire. I welcome that tender because it contains a number of important insights: exhibit D. I have also received on the offender's behalf; a report from Anita Duffy, a reference letter and medical records: exhibit 1. Mr Stevenson gave evidence before me.
I have the benefit of both written and oral submissions from Mr Fraser, Public Defender, for the offender and Ms Hughes, for the Director of Public Prosecutions.
There are agreed facts before the Court: exhibit A. The agreed facts are detailed. Much of the detail relates to what was done to each child complainant. While I have carefully considered what was done to each boy as an assessment of objective seriousness is always required, it is not necessary that the more explicit or prurient details be set out in a judgment that in accordance with current practice will be published online.

[5]

Count 4 - Indecent Assault on a male; Complainant Jamie White

Count 4, indecent assault on a male, and an offence on a Form 1, procure indecent assault, relates to the complainant Jamie White. The matter on the Form 1 will be taken into account. Although I do not sentence for that matter it is relevant to my assessment of the appropriate penalty in accordance with the directions of the guideline judgment: Attorney General's Application No 1 [2002] 56 NSWLR 146.
Jamie joined CEBS in 1972 and remained involved until he was 16. The offender was one of the leaders of the group. It is not clear at what age he was when this event occurred, but Jamie recalls the offender gave him tests in a room that had double doors inside the hall. The tests included tying knots, memory tests and the like. The offender would take one boy into this room at a time to conduct these tests.
Jamie had done other tests without particular incident, but he does recall one time when some boys were outside the room laughing when it was his turn to go in. Before he went into the room he was made to read the Lord's Prayer. He remembers on this particular day being the only boy that was being tested. The offender locked the door and shoved some rolled up cardboard into the keyhole. The offender told Jamie he would show him how you splint and bandage a testicle injury. Jamie remembers his pants and underpants were off, but he cannot recall who took them off. He lay on the table, the offender cupped his genitals then wrapped bandages around them.
The offender asked Jamie if he wanted to do it to him. Jamie remembers sticks being involved and remembers wrapping bandages to the offender's penis and testicles and being made to put his hands on the offender's testicles. Jamie said he felt dirty afterwards and did not want to talk about what had occurred (matter on the Form 1).
When Jamie was in his mid-twenties he came across the offender at a local club. Jamie confronted the offender and said, "I want you to admit to me what you did to me when I was a kid". The offender said, "I'm sorry I sexually abused you and all the other boys. I'm not like that anymore. I have had sex with a woman, I'm not like that anymore". The offender kept apologising and shaking.

[11]

BASIC PRINCIPLES - SENTENCING FOR CHILD SEX OFFENCES

In August 2018 s 25AA was introduced to the Crimes (Sentencing Procedure) Act 1999. This section applied to these proceedings. It notes: 1. A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. 2. However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing. 3. When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts). 4. This section does not affect section 19.
Judges must give effect to the will of Parliament but current sentencing patterns and practices are significantly impacted on by the guidance offered by increased maximum penalties and the need to give content to standard non‑parole periods when they apply. Section 19 Crimes (Sentencing Procedure) Act requires a court to take into account the maximum penalty applying at the time of the offence.
In 1970 the maximum penalty for indecent assault on males; and that was males of any age, was five years, and two years for procure offences, so far as males of any age are concerned. Today s 66DA, sexual touching of a child under ten, carries a maximum penalty of 16 years imprisonment and a standard non‑parole period of eight years and s 66DB, sexual touching child between ten and 16, carries ten years imprisonment. In the 1970s there were no standard non‑parole periods.
"Sentencing practices" include both common law and statutory matters such as those now included in s 21A of the Crimes (Sentencing Procedure) Act. Justice Basten in MPB v R [2013] NSWCCA 213 perceptively made these points: "It follows that the correct approach to fixing of the sentence involves the following steps: a) determine the facts as now available to the Court; b) have regard to the maximum penalty in force at the time of the offending, as a guide to the range of punishment then available; c) identify where within the range of offending conduct covered by the offence charged, the offence under consideration falls; d) fix the term of the sentence or sentences." e) is not applicable here. He then said: "In accordance with that approach, it is neither necessary nor appropriate to have regard to the actual patterns or practices of sentencing which are now believed to have operated at the time of offending whether based on acceptable statistical evidence, cases or memory."
The current s 44 Crimes Sentencing Act would apply. Justice Howie in Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497, at [66] - [71], made similar comments.
I am not aware that sentencing courts have ever underestimated the trauma of sexual abuse and the impact of such offences on children. Sentences in the 1970s were lenient by the standards of today however maximum penalties were taken into account. Courts did treat such matters seriously, although generally the non‑parole periods were shorter, and before 1990 there was an entitlement to remissions. A case in point is R v Fisher (1989) 40 A Crim R 442, at 445.
Some of the sentences that were imposed at the time, particularly for offences on children, were quite severe: see I. Potas, Sentencing Violent Offenders in NSW, Law Book Co, 1980. What has changed is that sentences are even more retributive than they used to be and community expectations of retributive punishment are high and remain high. By retribution I mean a notion that reflects the community's expectation that an offender will suffer punishment, and that particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267.
A proper sentence marks the Court's view of the seriousness of the crime and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes. That view was expressed by the Chief Justice in R v Herring (1956) 73 WN (NSW) 203. Retribution is a term often used interchangeably with deterrence.

[12]

CHILD SEXUAL ASSAULT - IMPACT ON COMPLAINANTS

I have had the benefit of evidence from Dr Dianna Kenny, a consultant psychologist with a speciality in child development and responses to child sexual assault. Dr Kenny, in exhibit D, notes that: "Misperceptions and stereotyping remain a problem for the understanding of sexual assault in men and boys in legal and medical settings and in agencies providing services to sexual assault victims These misperceptions include the belief that male victims are responsible for their assaults, that male sexual assault victims are somehow less traumatised by their experience than female sexual assault victims, and that sexual arousal during the assault is an indicator of a positive erotic experience during the assault. These elements in the assault experience is incorrectly understood by assailant, victim and the justice system and the medical community as signifying victim consent to the assault" when it is clear that they do not. She cites studies that: "--show a significant proportion of male victims of child sexual assault do not disclose the abuse for up to 20 years or more. Concern is sometimes expressed by child victims that they themselves become sexually aroused. If one feels guilty about an experience this is only a small step in an immature mind, for example a young boy, to draw a conclusion that one has been bad and that it is somehow their fault that the abuse occurred. Hiding from the consequent shame is another potent deterrent to disclosure. Abuse in a youth group setting falls into the definition of institutional child sexual abuse. In such situations as here perpetrators can engage in highly stylised forms of abuse, performing the same rituals which each of the boys abused. Children are generally socialised to be respectful and subservient to authority figures. Where the perpetrator occupies a position of authority there can sometimes be a 'smooth segue' from legitimate instruction to sexual abuse that would not have been clear to the young victims."
The reactions to such sexual assaults, as expressed in the facts here and the Victim Impact Statements, are tragically all too common. They include guilt, shame, embarrassment and feelings of confusion.
Dr Kenny says that behavioural responses to child sexual abuse vary: "there are no unique set of behavioural constellations." They vary because of the diversity of the abuse experienced. Few generalisations can be made, but it is commonly noted that child sexual assault to developmentally inappropriate and dysfunctional interpersonal relations, feelings of betrayal, betrayal of trust, powerlessness, guilt and shame about the experience.
Dr Kenny notes that longer term effects have been identified, including psychological conditions, adjustment disorders, substance abuse and self-harm. In summary, she says all forms of child mistreatment present significant risks for later physical and emotional wellbeing.

[13]

CHILD SEXUAL ASSAULT - ASSESSING OBJECTIVE SERIOUSNESS

In every count for sentence a court must assess its objective seriousness. I start with this premise; every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition now, as there was when these offences occurred, on sexual activity with a child. That prohibition is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It is one important reason for the high maximum penalties now fixed for such matters.
I must also give effect to basic principles of sentencing law set out in the common law and of course in the Crimes (Sentencing Procedure) Act 1999. One important principle is that the sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances: Hoare v The Queen (1989) 167 CLR.
The objective seriousness of the particular offending must be determined in the light of the entirety of the facts and circumstances. When assessing the objective seriousness of sexual offences against children it is the actual character and nature of the act involved that is important. What is of considerable significance; is the degree of physical contact involved; the time over which the acts occurred and whether any harm, hurt or injury: physical or psychological, resulted. Other relevant matters include, the age difference between the perpetrator and the child and the age of the child relative to the range encompassed by the offence. Generally, the younger the child the more serious the offence.
I must also take into account the relationship between the offender and the child. Here, Stevenson's role as a guide and a mentor, trusted by the church and the children's family to care for, not abuse the boys in his charge, is particularly relevant.
There are eight counts involving seven boys. Each must be addressed separately. In some counts the child was younger, relative to their comrades in CEBS. While each count represents an individual act, some are representative, in that there appears to be more than one incident involving that child. Other crimes appear to be 'one‑offs.' In some the contact with the child's genital area was the predominant factor, others involved the child manipulating the penis or testicles of the offender to varying degrees. These matters require some differentiation in sentence between the counts, and because at the relevant time the procure offence carried a significantly lower maximum penalty.
I must impose and fix sentences for the eight offences. I am required to impose an appropriate sentence for each offence and then to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender's criminal behaviour: Mill v The Queen (1988) 166 CLR 59.
There must be some accumulation of penalty. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for offending against multiple victims. However, courts must also recognise that sometimes the accumulation of appropriate punishments for each offence can result in a total sentence that is unduly harsh or crushing. The severity of a sentence is not simply linear; the severity of a sentence may increase at a greater rate than an increase in the length of the sentence. For example, a sentence of two years has greater impact than a sentence of one year so far as the punitive aspects of sentencing is concerned: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159.
It must also be recognised that the offender will be released to the community. In some cases of multiple offending an offender may not be entitled to the element of mercy from applying this totality principle. Although the Crown submits that there should be significant accumulation of sentences, here the principle does, to a degree, constrain the total penalty that should be imposed.

[16]

CASE FOR THE OFFENDER

Stevenson has never before been convicted of a criminal offence. He is now in late 60s. He has some support in the community, although he is generally isolated and now estranged from his family.
He gave evidence. He confirmed the history given to Ms Duffy. He tried to convey what was in his mind at the time, nearly 50 years ago. Ms Duffy describes his preoccupation then as "deviant". An accurate determination by a respected psychologist. He spoke to her of his fascination with young boys and their penises. As a mature man he currently accepts that what he did was without consent and an abuse of trust. He says he did not have any thought of the consequences, either criminal, or more particularly, consequences to his victims of what he had done. He said it was only later that he realised the wrongness of his action and that he decided to "put an end to such behaviour", and not offend against children again.
In cross-examination Stevenson conceded that even as a teenager and while technically a child, he knew what he was doing was "completely wrong". He accepted that he engaged in pretence, planning and thoughtlessness so far as his victims were concerned when he did what he did.
His expression of remorse appeared genuine. The courts must however be sceptical, whether that expression of remorse is given on oath, or be simply conveyed second hand in documents put before the Court. Generally what courts look for are practical demonstrations of remorse. There was a practical demonstration of and acknowledgment of the wrongness of his act by his ceasing to offend. So far as his expression of concern for the various complainants, or victims of his offending; his fear of retribution, I am prepared to accept, meant that he delayed until the last what would have been, in his own mind, an inevitable plea of guilty rather than put his victims to trial. But he did delay until effectively the last minute It was not until the plea was entered in the week before trial that any of the complainants were spared having to prepare to be tested about their allegations in court.
The medical evidence indicates that Stevenson is not a well man. He has hypertension, diabetes and renal impairments. He is on medication and he will require careful review by Justice Health and possible time in the gaol hospital. Offenders cannot escape punishment because of their ill health, but it is a factor that does mitigate. The realities of prison life should not be overlooked, particularly for one of his age and vulnerability. His poor health means that prison will be harder on him than for the hypothetical average prisoner. It is a basis for a finding of special circumstances: R v Sellen (1991) 57 A Crim R 313.
Ms Duffy notes that he has been a homosexual man all his life but has repressed his homosexuality, at least until his mother's death in 2008. He expressed to her appropriate admissions of guilt and regret.
Stevenson grew up in the local area. He worked at the steelworks from 1978 until 2005, when he left to care for his mother. He has worked with children as a bus driver. He was, until his arrest, working as a bus driver for the elderly. He has few close friends and describes himself as a shy teenager who when young felt comfortable with younger boys, and was then both curious about and attracted to them.
It is important in any assessment of his future risk that the offending does appear to be confined to when he was a teenager and in his early 20s. Testing by Ms Duffy indicates that he demonstrates highly avoidant behaviour, which indicates social anxiety and social isolation.
When it came to assess his risk of future offending she found that it was below average. That finding was primarily based upon the conclusion which has not been contradicted, that he has not offended since his 20s.
I am prepared to accept his remorse as expressed in court today. More particularly, voluntarily ceasing offending behaviour provides strong evidence of progress towards rehabilitation: R v Burns [2007] NSWCCA 228.
Stevenson was a young man when he offended. There is a fine line in the legislation as to when a child becomes an adult and when a young person is subject to adult sentencing principles, the age of 18. There is a recognised legal principle that lesser sentences can be imposed on youthful offenders to recognise the immaturity of youth: DM v R [2005] NSW CCA 181. People take time to develop their emotional maturity sometimes at different rates than their physical maturity. But, as Madam Crown notes, the offender was able to work; he did take a position as a youth leader and he obviously was seen by others as a role model; that is, a proper and intelligent young man who could instruct others.
Youth at the time of offending is a relevant fact. So far as Count 1 is concerned he was still a child. The then Child Welfare Act 1939 cannot be applied but current sentencing practices recognise that lesser penalties are generally imposed on those who commit offences when they were a child, because of their immaturity often inherent in their offending behaviour and their reduce moral culpability as a result.
I am indebted to Ms Hughes, solicitor advocate for the Director of Public Prosecutions, and Mr Fraser, Public Defender for Stevenson, for their comprehensive submissions, oral and written. I hope this judgment does justice to them.
So far as specific aspects of the submissions are concerned, they are very helpful and I have taken them into account.
So far as Ms Hughes' submission regarding s 21A(5A) Crimes (Sentencing Procedure) Act, it is important to note that the offender was a child when he started his offending behaviour. He had never previously been in trouble before, and I would suspect that CEBS would not have allowed him to be a youth leader had he had an extensive criminal history. But there is no evidence before me that he used his good character, as such, to commit these offences. That is not to say that he did not abuse the trust that everyone put in him, a matter I have already alluded to.
His absence of convictions after the offending behaviour is perhaps more important. I disagree with the Crown so far as assessment of future risk is concerned. With great respect, Stevenson's 40 years of good behaviour in the community is a matter that I can take into account. It is highly unlikely he will have the opportunity to offend again and I am prepared to accept that he did not take up the opportunity to offend after he ceased contact with young boys on leaving CEBS.
As to questions of accumulation and concurrence, I have discussed those matters with counsel - there must be some accumulation here. But to simply place each sentence one on top of the other would in my opinion not do justice or reflect all of the purposes of sentencing.

[17]

SYNTHESIS

Given the maximum penalties then available and the seriousness of each count, custodial sentences are required. Each was a serious example of its type; particularly given the age of the child and that the offender was a church youth leader. There is room here for a finding of special circumstances. It requires that the relationship prescribed by s 44 of the Crimes (Sentencing Procedure) Act be varied so that the considerable delay and the offender's significant changes from a serial offender as a young adult, to a person who has apparently ceased all offending as he matured, be taken into account.
Stevenson will be vulnerable in gaol for many reasons, including the nature of offences, his age, his health and his general naivety. He will need protection at least for the first part of his sentence. On release he will need assistance in adjusting to community life. But it appears given his history since the 1970s any risk of reoffending is low.
While recognition must be given to his age and medical condition and the fact that prison will be detrimental to him, mitigating factors while they will be given appropriate weight, must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offences.
Sentencing courts have an obligation to vindicate the dignity of each victim of sexual violence and to acknowledge those who have come forward as the complainants here did. Courts have to express the community's disapproval of the offending and afford, such protection as can be afforded, to others against repetition of the offending. By repetition I mean offending by others. Everyone in the community should and must understand that if you interfere with young children in a sexual manner it is likely that you will be sent to prison. It is the fact that the prison door will close on Mr Stevenson that is of critical importance here.
I have to indicate the sentences that I would have imposed. I note that for count 4, the third count, I have taken into account the matter on the Form 1. Given the delay in entering the plea while it saves some court time and allowed other trials to be listed, it kept the pressure on the victims till the very last. Stevenson is entitled to a reduction of 10% of the otherwise appropriate sentence indicated for the utilitarian value of the guilty plea.
I have rounded some of the figures, as is my general practice. Because there must be accumulation I have tried not to erode the benefit given for each guilty plea.