Regina v Andrew Dean MCINTOSH - [2011] NSWDC 160 - NSWDC 2011 case summary — Zoe

NSWNSWDC

Regina v Andrew Dean MCINTOSH

[2011] NSWDC 160

District Court of NSW|2011-08-22

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At a glance

Source facts

Court

District Court of NSW

Decision date

2011-08-22

Catchwords

2009/5544

Source

Original judgment source is linked above.

Catchwords

2009/5544

Judgment (41 paragraphs)

[1]

Introduction:

The offender, who is now aged 53 years is a persistent and dangerous paedophile. He first came before a court on 29 June 1988 when he was charged with 11 offences which included allegations of homosexual intercourse with a boy and offences of indecent assault. These offences were committed in 1985 and 1986 on the boys who was nine. At the time of the trial the boy was 12 years old. The offender was convicted of indecent assault offences and acquitted of offences of homosexual intercourse.
The facts on which he was convicted established that he was engaging in acts of simulated homosexual intercourse with the boy. What he was doing was in fact similar to what he had done to child victims in Inverell, before he went to live in Grafton.
The majority of the offences of which he was convicted were committed in a converted bus in which he was living. At the time he committed these offences, he was, at the request of the parents of the boy, caring for the boy whom he assaulted. He had insinuated himself into the family of this boy and had become so trusted by them, that he was managing their family business as well as caring for the boy whom he abused sexually.
These offences were committed in Grafton, a town to which he had gone to live when he decided to leave the town of Inverell at the end of 1984 or early in 1985. It is significant, in my opinion that these offences were committed relatively soon after he had moved to Grafton because during the period he lived in Inverell from 1977 till the end of 1983, he had committed similar offences against three boys. Those offences were the subject of his most recent trial before me.
This most recent trial resulted in his conviction on 18 counts, being six counts of buggery, eight counts of indecent assault and four counts of common assault. These offences were committed between November 1977 and March 1983.

[8]

Relationship with S

The offender met the victim outside a cafe in Otho Street called "Uncle Georges'". This is a place where children and the offender often congregated after school. The offender would give the children money to buy milkshakes. The offender would also take photographs of the victim and other children racing BMX bikes at a local bike track.
The offender took the victim to a property in Tingha to go shooting. The offender also took children from the Inverell BMX Club to Coffs Harbour and Newcastle (2 night visit) for the purpose of participating in races. The offender would take the victim jet skiing on Copeton Dam. In May 1981 the offender took the victim to Sydney with him (2 night visit). The purpose of the trip was so that the offender could settle his father's will. The victim was excited because it would be his first time on a plane. In Sydney the offender took the victim on the ferry to Manly Fun Pier (an entertainment arcade for children). In Manly the offender purchased an Australian Rugby League 1981 badge for the victim.
The offender took both the victim and the victim's sister on a trip up to Ballina in his converted bus. During this trip the sister slept on the single bed on the bus and the victim slept in the double bed at the back of the bus that was divided off with a curtain from the rest of the bus.
The offender also took the victim on work related trips to Armidale, Tamworth and Narrabri.
Eventually, the offender required the victim to go to his house every day after school or meet him at a pre-arranged meeting point. S: "I had to go straight to his place and wait for him". The offender would cuddle, kiss and make the victim put his head in the offender's lap. Evidence was also given by the victim of non-consensual intercourse that are not the subject of these charges.
The offender stopped his offences against the victim in 1983. The victim still saw the offender because his bus was still at the family home. The offender left the Inverell area in Christmas 1984.
The offender had given gifts to the victim. They included a Casio watch, bike helmet, Ruger 223 semi-automatic rifle, Ruger 22 calibre semi-automatic rifle and a motorbike. The offender took back the bike and the rifles when he stopped his offending. The victim gave the offender $121 to ensure the offender had enough money to leave Inverell in 1984: "I just wanted him out of my life."

[21]

Relationship with Victim

The victim knew the offender through his participation in the Barker College Cadet Unit. The victim was a student of the school and the offender assisted the school in the running of cadet activities. The victim (15 years old) met the offender in the Easter holidays of 1990 at the school's annual cadet camp at The Grange (a property owned by Barker College in the Blue Mountains). At this camp the victim signed up to a new platoon run by the offender that specialised in medics and radios. The victim joined this specialised platoon because he had ambitions to reach the rank of SUO (the top student rank in the school).
Before joining this unit the offender would occasionally give the victim a lift home from school and encourage him to join his new platoon. The drives home started to get longer as conversation between the two moved beyond the topic of cadets. On these occasions the offender would tell the victim to tell his parents that he caught the train and home (rather than tell them that he had been driven home by the offender): "Mr Chandler, I'll drop you at the top of the street. You tell your parents that you caught the bus and train home, is that clear?" On a drive home the offender asked the victim to pull his penis out of his pants. When the victim initially declined, the offender responded "Don't you trust me Mr Chandler? I've got nothing to - I'm not going to hurt you, I just want you to learn to trust me". The victim eventually complied. This happened on several occasions.
The offender would often single the victim out from the rest of the cadet group to assist the offender with various cadet related tasks. This caused the victim to be ridiculed by the other cadets. The offender would often excessively abuse and ridicule the victim for trivial reasons such as unpolished boots. This would cause the victim to cry upon which time the offender would embrace him and tell him "It's alright Mr Chandler, you know you can trust me, I'm your friend, I'm going to help you". This occurred nearly every Monday.
In early 1991, the offender told the victim to quit his after school job at McDonalds and come work for him installing car stereos, CB radios and phones into cars. The victim spent his weekends with the offender doing this.
From June/July 1991 to mid 1992 the offender regularly assaulted (approximately once a month) the victim in the same manner at the offender's house at Towlers Bay. The events were that the victim was ordered to take off his clothes and lay face down on the offender's bed. The offender placed KY Jelly between the victim's legs and then lay on top of the victim's back and simulated intercourse between the victim's legs. During the assaults, the offender would momentarily penetrate the victim's anus with the head of his penis. After the offender ejaculated, the offender would lay face down on the bed and make the victim simulate intercourse between the offender's legs. Following this, the offender would make the victim shower with him. In the shower the offender would touch the victim's body and genitalia.
The victim wrote two, what could be best described as "love letters", to the offender. Both letters were written on occasions after the victim had been subjected to a series of torment from the offender. The first, was written in 1991 and the second in 1992.
The victim explained that he complied with the offender's requests because he was afraid of the offender and his temper (the victim had been beaten on numerous time when the offender had become upset). The offender would also constantly reiterate the need to trust and that if the victim trusted him then there would be rewards. The main reward was that the offender would assist the victim in achieving the high rank of SUO within the Barker College Cadet Unit.
After the offender stopped assaulting the victim, the victim still remained in close contact with the victim and the victim's family. Shortly after finishing the High School, the victim moved into the house of the offender, which was located down the road from the victim's family home.
The offender gave the victim a character reference when the victim got charged with possession of a small quantity of marijuana. The victim used this in court.
Shortly after meeting his current wife, the victim phoned the offender and asked him why he assaulted him as a boy. The offender replied, "I loved you, I love you, I have always loved you. I never meant to hurt you". The victim and his wife left the country, and went to the UK, shortly after this phone call was made.

[24]

Punishment for Break-In at Rugby Club

While working for the offender a job request was made to install a security system into a Wahroonga Rugby Club. The victim had, in the school holidays, broken into this rugby club with friends and stolen beer and soft drinks. The victim informed the offender of this, to which the offender replied "I'm going to need to punish you for doing this". The offender told the victim that next weekend he was going to give him a hiding for what he did. All week the offender kept reminding the victim that he was going to get a hiding on the weekend.
The following weekend the offender told the victim that there was going to be a cadet abseiling day on the Sunday and to tell his parents that he was going on a camp for the weekend. The offender drove the victim to his property at Towlers Bay on the Saturday. Once at Towlers Bay, the offenders property was only accessible by boat so they had to take a aluminium runabout out to the property.
Once on the property and in the house, the victim pleaded with the offender not to punish him. The offender got angry and demanded the victim take his clothes off. He said "you told me you trusted me. Now prove that you trust me" at which point he told the victim to go into the bedroom and get the offender's leather belt off the bed. Upon retrieving the belt for the offender, the offender demanded that the victim get down onto the floor and put his nose on the straw matting. He said "you are going to get cop ten, ten of the best". The offender also informed the victim that if he flinched he would get an extra striking. The offender then proceeded to hit the victim ten times with the leather belt. He then told the victim that he had flinched twice and proceeded to hit him two more times (Count 2). The strikes left red welts on the victim's buttocks.
After the assault the offender showed the victim some firearms that included a SKK rifle with scope and bipod, 22 calibres pump action rifle and an air gun. He showed the victim how to use the pump action rifle and allowed him to fire it out the window into the ocean.
Later that night, after renting two pornographic, the offender placed a spare mattress in the lounge room and played one of the pornographic movies. During the movie, the offender touched the crotch of the victim (Count 3). 30 seconds to 1 minute later the offender told the victim to take off his clothes. The offender went into the master bedroom and came back naked with a small tube of lubricant. The offender then lay down next to the victim and grabbed the victim's penis and his own and started to masturbate both himself and the victim (Count 4). The offender then instructed the victim to take a shower with him. In the shower the offender made the victim wash him down, including the genitals, with soap. The offender then proceeded to wash the victim down with soap, including the genitals (Count 5). The offender then asked the victim to sing "Stand by Me" with the offender while still in the shower.
The victim then went to bed in the spare room. Sometime during the night the offender grabbed the victim by the arm and made him go sleep with him in the master bedroom. Nothing else happened that night.

[31]

Beating for Conversation with a fellow student

At the request of the offender, Barker College had permitted a storage unit on number 3 oval be used to store the equipment of the specialist platoon. It was called the Bunker and was located away from the Q Store in the school's main campus block. Shortly after the Pittwater camp, the victim and a fellow student were down at the bunker when the fellow student started asking the victim questions about the behaviour of the offender. The fellow student particularly wanted to know why the offender carried around paddles and a "stinger" in the back of his car. The victim informed the offender of this conversation. This enraged the offender. The offender got both the fellow student and the victim together and told them that they would both be punished for having broken his trust. The offender told the boys that they were going to get a "hiding".
The next Saturday the offender took both the victim and the fellow student to his property at Towlers Bay. He had informed the boys to tell their parents that they were staying on a over night camp with other cadets. When they arrived at Towlers Bay, the victim was told to sit on the jetty, while the offender took the other boy up to the house. The victim could hear him being beaten from the jetty. He heard approximately ten cracking sounds. About 10 minutes later the boy came out of the house crying and the offender informed the victim that it was "now his turn". At the house the offender told the victim that he was going to get "ten of the best". The offender then asked the victim he wanted to be beaten with. The victim chose a wooden paddle. The offender told the victim to pull down his pants. The offender laid the victim over his knee and struck the victim on the bare buttocks with the paddle ten times (Count 19). After the assault the victim sat on the offenders lap crying while the offender cuddled him. The strikes caused red welts ton the victims buttocks.
Later on in the day the offender made the other boy and the victim watch an animated video about "penises and dildos". That night the victim fell asleep in the spare bedroom but during the night the offender woke up the victim and made the victim sleep with him in the main bedroom.

[35]

Australia Day Cadet Camp (January 1992)

The victim and offender attended a two night, Australia Day long weekend cadet camp at a property in Woy Woy. At this camp, the offender parked his van close behind a tent that slept approximately 15 cadets. On the last night of the camp the offender demanded that the victim enter the van and informed the victim that he would be sleeping with him that night in the van. There was a double sleeping bag in the van. The offender got into the sleeping bag and told the victim to do the same so that they were lying face to face. The offender proceeded to masturbate both himself and the victim (Count 24). The victim was very worried about others witnessing this event given the close proximity of the van to the cadets' tent. That night the victim slept with the offender. In the morning another cadet (Andrew Smith) witnessed the victim get out from the back of the offender's van.
The maximum sentences for the offences he committed are set out in the table below, together with details of the counts in the two indictments
Trial 1 - Grafton 1988 -Trial in the Supreme Court before Maxwell J and a jury Re events of 1985 and 1986
Indecent assault (Crimes Act sec 61(E)(1))- counts 1 and 11 Maximum penalty- 4years imprisonment
Indecent assault under authority(Crimes Act sec 61E (1A)) Counts 4,7 and 10 (alternatives to homosexual intercourse and attempted homosexual intercourse. - Maximum penalty 8 years imprisonment
Sentence: The overall sentence was one of 6 years imprisonment with a non parole period of 2 years. Both the head sentence and the non parole period were
Trial 2 - Barker College 2009 re events in 1991 and 1992 1.Gross indecency with a male under 18 years (Crimes Act Sec 78Q(1)) - Counts 1 and 18 - Maximum penalty 2 years imprisonment
Assault occasioning actual bodily harm (Crimes Act Sec 59(1)) - Counts 2 and 19 Maximum penalty 5 years
Aggravated indecent assault (Crimes Act Sec 61(M)(1)) counts 3,4,5,7,10,11,13, 14, 16, 17, 22 and 24 Maximum penalty 7 years
Indecent assault - counts 20,21 and 23 Maximum penalty 5 years imprisonment
Homosexual intercourse with a male 10 -18 yo. Counts 6,9, 12 and 15 Maximum penalty 10 years imprisonment
Trial 3 - Inverell 2011 re events in 1978 -1984
Indecent assault - Counts, 1,2,3,4,5,6,9 and 15 (Crimes Act sec 81) Maximum penalty 5 years imprisonment
Assault - counts 7, 8, 12 and 18 (Crimes Act Sec 61) Maximum penalty 2 years imprisonment 3 . Buggery - Counts 10,11,13,14,16 and 17- Maximum penalty 14 years
There are many similarities in the offender's pattern of conduct with his victims. At times he showed affection towards his victims. For example the first offence against P involved kissing him on the lips at ice skating rink and at times he would cuddle other victims.
The indecent assaults against P, with the exception of the kissing at the skating rink, involved simulated sexual intercourse, the first such offence involving the offender lying on top of the victim who was face down and placing his penis between his legs and the second one involving P and being on top of McIntosh who placed his penis between his legs.
Counts five and six, being offences against M also involved simulated sexual intercourse with the additional element that the offender used vaseline.
Count four involved an indecent assault on M where the offender masturbated him and used a condom. Similarly, Count 15 involved an attempt to masturbate S.
The Grafton trial in 1988 resulted in the offender being convicted of indecent assaults. Three of those indecent assaults, which were alternative counts to homosexual intercourse and attempted homosexual intercourse involving the offender placing his penis between the legs of the victim.
During the Inverell trial, evidence was given of assaults on the naked backside of M and S. The assault on Mwas a hand on the bare backside, whilst the assaults on M were firstly with a jug cord and then with a feather duster. All these assaults caused pain and physical and mental damage.
The assaults on Sascha Chandler were particularly violent, were on his bare backside and involved the use of a wooden paddle.
What made these violent assaults even worse, in my opinion, was that they all had a sexual element to them and were part of the gratification of the offender. This conduct can truly be described as sadistic and humiliating.
The offences of buggery and homosexual intercourse were factually identical. They involved in each instance the penetration of the anus of the victim by the penis of the offender. The two victims who received this treatment were S and Sascha Chandler. Each of these offences was carried out in a manner calculated to humiliate the victim and to cause him physical and mental pain. It must be doubtful if the victims will ever recover from the effects of this penetration.
The offender managed to gain the confidence of S's mother and father. He was able to live in a bus at the family home and to be present in that home on many occasions. He also gained the confidence of the parents of the other victims. In the case of Sascha Chandler's family, he became a family friend and someone who was invited to attend for Christmas dinner. All the parents of the boys whom he abused, trusted him and permitted him to have access to the boys, believing that he was caring for them. He abused the trust given to him by those parents and in the case of Sascha Chandler, given to him by the headmaster and staff of Barker College. He told lies to the parents and the boys, he manipulated the parents of boys and the teachers at Barker College and at his various trials before me he told lies about his activities.
When he was arrested for the offences he committed at Barker College, he was placed in custody, but eventually obtained bail by order of a Supreme Court judge. It was a term of that bail that he reside in a flat in Chatswood and report daily to police. During the course of that bail he absconded by boat, sailing to Queensland and hiding in Moreton Bay until he was eventually discovered and returned to New South Wales in custody. He remained in custody from the date of his arrest in Queensland until the present time.
He gave false explanations about that flight at his trial for the Barker College offences. I mention this because it is a further demonstration of the fact that he is a man whose word cannot be accepted.
Sentencing him poses many problems, since all of the offences were committed some time ago, and in the case of the offences at Inverell, were committed in the early 1980's.
When he was sentenced by Maxwell J in 1988, the sentence seems to have been influenced by a number of factors: Various witnesses spoke well of him.

A psychiatrist gave evidence about him that was favourable to his rehabilitation.
A probation officer gave evidence through a report that he was likely to rehabilitate himself
He was quite young at the time, being about 25 years old at the time of sentence.

Although he was convicted after a trial at which he gave no evidence, and he said and did nothing to indicate that he had any remorse or contrition, Maxwell J formed a favourable impression of him.
The sentence he received in 1988 in my opinion, was a very lenient one. Its effect was that he was released after spending 16 months in custody. This was because at that time, remissions were given on sentences and non parole periods, usually of one third, if the particular offender was a first offender.
Within a short time of his release, he went to live and work near the upper North Shore area of Sydney, where he was working in an electronics shop. Whilst there, he met some men who were associated with the Barker College cadet unit, who were inquiring about the possibility of setting up an electronics platooon in the Cadet Unit.He told them that he was an old boy of the College. (Apparently he spent a term or two at Barker College as a Boarder, but deliberately behaved badly so that he would be expelled.)
As a result of this conversation and representation, he managed to get himself accepted as a Cadet Officer in the Barker College Cadet Unit. Barker College prides itself on its Cadet Unit, one of the largest school cadet units in Australia, with 300 or so cadets, all of whom during the time the offender was a Cadet Officer at the school, were boys.
His role in the Cadet Unit was to take charge of a platoon of boys who wanted to specialise in electronics and first aid. He had skills in both of these areas. He could also shoot a rifle, abseil, scuba dive, drive a boat and he had other practical skills. He was charming, dressed well, knew how to get the confidence of parents and teachers and was prepared to assist Sascha Chandler to realise his ambition to become the Senior Cadet Under Officer in the Cadet Unit.
Sascha Chandler was a boy of 15 when he met the offender and immediately became captivated by him. I feel that I must congratulate Mr Chandler for his courage in coming forward and telling the police more than 10 years after he had left Australia for England, about what the offender did to him and to others at Barker College.
His determination to expose the offender led to the offender being arrested and charged with the offences that led to his trial before me and a jury of 12. Unless he had been prepared to do this, the offender's activities at Barker College would never have come to light.
Following the conviction of the offender, Mr Chandler took the most unusual step of insisting that his name be published and of encouraging the media to publish photos of him and personal details.
His aim was to encourage others who had been sexually and physically abused by the offender to come forward and there can be no doubt that the complainants in the second trial before me and a jury of 12 came about because the complainants who came forward saw what Mr Chandler had done and decided that they too should come forward. This second trial led to evidence being given of the offender's criminal activities in Inverell, before he went to live in Grafton. I have no doubt that if these events had been known of at the time he faced trial before Maxwell J and a jury of 12 in 1988, he would have been given a more stern sentence than the one he received.

[36]

The Offender- what can be said about him?

He is now 53 years old and will be 54 on 7th December. He was the youngest of 3 children. His father was a successful chartered accountant with some wealth, who owned a home in Sydney and a number of farms in the Inverell area. The picture presented of him is that of a cold man, who spent much time away from his family, dying in Scotland away from them.
His mother is now dead, but his brother and sister have continued to support him in many ways. At one point, he lived with his brother in a flat at Chatswood, when he was on bail after his first arrest in Queensland before his first trial before me. His brother put up a surety in a considerable sum for his bail. His brother and his sister were both present on most days of his first and his second trial.
I mention these facts because he has made claims to psychologists that he was not close to his brother and sister and yet they clearly have given him much support.
He apparently suffered from some form of dyslexia, that made learning a burden to him. He had unhappy years at school and when his parents sent him to Barker College, he contrived to get expelled.
Whilst his childhood may have had lonely moments and disappointments, there is nothing that explains his abnormal interest in boys and in particular, his interest in buggery and violence against boys.
He then went off to learn about the pastoral industry, working in various jobs until he took over the management of Lorraine, the family farm at Inverell. He appears to have been quite clever, because he learnt to be a mechanic, a farmer, a photographer, a supervisor of building works, a scuba diver, an electronics expert, a first aid expert, an abseiler, a shooter and a trained user of explosives.
He could ride motor bikes and drive cars and buses.
He claimed in evidence that when he left the Barker College cadet unit, he continued to be involved in cadets with the Australian Army at Victoria Barracks, Sydney.
He was 21 or 22 when he first became involved in paedophile crime in Inverell, 27 to 31 in Grafton and 33 to 35 whilst he was at Barker College.
Thereafter, until his arrest in Cairns, it is not at all clear what he was doing, but there is evidence that he was charged in 2005 with serious sexual offences allegedly committed in Australia and elsewhere in the world, but those proceedings resulted in verdicts by direction in his favour. I can draw no conclusions against him arising from this, but at his sentencing proceedings, he has given no evidence to show that he has ceased to be interested sexually in boys.
He has told psychologists that he has no interest in boys and has never had any interest in boys. I do not believe these claims because his convictions in three separate trials show them not to be true.
Two psychologists' reports were presented on behalf of the offender, but he gave no evidence to support the facts stated in the reports and I view them with considerable reservations. Some of the claims made by him in the reports are at odds with the evidence in the trials, particularly his claims that he has never committed any offences of a sexual nature at all. He has expressed a guarded agreement to go to appropriate programmes.
The psychologists detected no signs of mental illness nor any other abnormal psychological condition.
I have also had regard to a pre-sentence report provided on 30th September 2010. He told the Probation and Parole officer that on legal advice he would not discuss the offences, since he was appealing.
The Report recounted information about his childhood and upbringing and that prison records established that his brother and his sister had been regular visitors. He is regarded as a compliant prisoner who is co-operative with the prison authorities.
He was assessed for suitability for and access to sex offender treatment programmes and has been assessed as being in the high risk category relative to other male sexual offenders. He would have access to the Custody Based Intensive Treatement Programme ( CUBIT) because he will receive a sentence of more than 18 months imprisonment.
The assessment of his having a high risk of re-offending is an actuarial risk assessment, based on a consideration of material known about the offender. He was not interviewed. He had claimed to have be a heterosexual and to have had two relationships of a sexual nature with women, each of less than two years duration. The evidence at both trials over which I presided showed little to support either claim. I would regard his claims that he is a heterosexual as being improbable and contradicted by the facts of both trials.
His assessment as having a high risk of re-offending, gives added weight to the need to protect society from him for a significant period.
I sought another report in 2011, but the Probation and Parole Service saw no point in providing one because he refused to acknowledge that he had committed any offences.
In my view, it is extremely improbable that he has changed his interests. I am of the opinion that he presents a continuing threat to boys and that will change only if he takes some action to make it change.
His prior criminal history shows the committing of relatively minor offences of dishonesty as a juvenile, the indecent assault offences on a male child, for which he was sentenced in 1988 by Maxwell J, the possession of a crossbow in 1987, and offences in 2005 of possessing ammunition without holding a licence and having goods in his possession reasonably suspected of being stolen. Prosecutions were also launched against him in 2005 for possession of child pornography and committing indecent assaults outside Australia. Those prosecutions concluded unsuccessfully when the trial judge directed the jury to acquit.
His previous convictions in 1988 are relevant to the sentence and I have taken them into account in determining that he presents a continuing danger to society. The other convictions are of little consequence and I do not take them into account. The fact that he came to trial for sex offences in 2005 is of relevance only to explain what he has been doing in and around that period, ie he has been involved in court proceedings. However, whilst that explains, at least in part, how his time has been occupied, it does not provide any material of relevance to the length of the sentences.
I want to make it clear that my sentences are in no way aimed at preventive detention. He cannot receive a larger sentence than is appropriate to ensure some form of preventive detention.
In Veen (no 2), the High Court of Australia said: "The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen (No.1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender: see pp 467,468,482-483,495. And cf. Walden v. Hensler [1987] HCA 54; (1987) 61 ALJR 646, at p 650; [1987] HCA 54; 75 ALR 173, at p 179,. It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible. The distinction between what is impermissible and what is permissible is at the heart of an illuminating controversy to be found in (1953) 6 Res Judicatae between Mr C.S. Lewis ("The Humanitarian Theory of Punishment", at p 224) on the one hand and Drs Norval Morris and Donald Buckle ("A Reply to C.S. Lewis", at p 231) and Professor J.J.C. Smart ("Comment", at p 368) on the other. The thesis advanced by Mr Lewis was that the retributive theory of punishment - punishing an offender "because he deserves it" - prevents the injustices which may be involved in detaining an offender in order, for example, to protect society or to reform the offender. The controversy, the light of which has not been dimmed by later literature, ended with C.S. Lewis' "On Punishment: A Reply" (at p 519) in which he acknowledged the importance of protecting society but in this way (at pp 522-523):" (See Veen v R ( No 2) (1988) 164 CLR 465)

[37]

Sentencing considerations

I have imposed sentences and an aggregate sentence that reflect the very serious criminality of a persistent, recalcitrant offender who has no remorse for what he has done. At the same time, I have allowed a significant allowance for special circumstances to make it possible for him to leave custody 12 years before the expiry of the aggregate sentence. There must always be some hope that he will change his ways and rehabilitate and he must be offered some inducement to do this.
The sentence is obviously a very serious one and appropriate only for a very serious offender, but in my view it is appropriate because the damage done by the offender has been great and his criminality is great. He has blighted directly 4 lives and indirectly the lives of others connected with those 4 men. Their victim impact statements make that clear.
The sentences also serve to protect the community for a considerable period and that is an important objective.
Over the past 11 years of my life as a Judge, I have frequently encountered evidence by persons addicted to drugs and alcohol that they were the victims of paedophiles when they were young. They have then spent lives feeling worthless, humiliated and inferior. Offenders like the present offender cause immeasurable damage and when apprehended must expect to receive severe punishments.
The sentences I impose are designed to protect society. As well as this, the sentences must accord with the usual sentencing principles of general deterrence, specific deterrence, retribution and rehabilitation.
It is also necessary that the sentences be proportional to the seriousness of the offences and that careful consideration is given to ensure that there be compliance with the principle of totality.
The number of offences is unusually large, the offences are very serious and the time gap between the offences at Inverell and the offences at Barker College make it appropriate that there be some considerable cumulation of sentences. The aggregate sentence reflects that, but it also reflects the principle of proportionality spoken of by the High Court in Veen No 2( supra) and the principle of totality.
It must be made clear to all persons contemplating or engaging in predatory sexual behaviour with children that they will receive very severe sentences.
Finally, I should make it clear that because the offences of which he was convicted occurred some time ago, the earliest occurring in 1979 or so and the latest in 1992, I have had regard to sentences imposed by courts in those times for these sorts of offences and I have had regard to decisions of the Court of Criminal Appeal about sentencing for offences occurring many years ago.
I have also had regard to the sentences imposed by Maxwell J on this offender in 1988.
The Court of Criminal Appeal cases to which I have had regard are contained in a schedule to this Judgment.
I have examined those cases carefully. In my opinion, while some of the facts in some of the cases are similar to individual offences in the current trials against the offender, there is no case that could be directly compared, because the offender is a predator who moved from place to place and from time to time carried out these offences. He also behaved with a violence towards some of his victims that was unusually cruel. Nevertheless, I have taken the sentences into account to the extent that I can.
None of the offences of which the offender is convicted carry standard non-parole periods, because they all occurred before the introduction into sentencing legislation of standard non parole periods.

[38]

The Sentences

I formally convict the offender of all offences of which he was found guilty by the juries at the trials before me on 6th July 2009 and 27th May 2011.
I have decided to impose an aggregate sentence of 32 years and a non parole period of 20 years.
I find special circumstances arising from the length of the overall sentences and the non- parole period and the need to give some incentive to the offender to undertake rehabilitation courses designed to stop sexual offending. He should be offered appropriate courses dealing with sexual offending. If he does these courses and shows convincing signs that he is prepared to do something about his unnatural interest in boys, he should be considered for a lesser degree of custody than maximum security.
The sentence and the non parole period will have a deduction from each of 41 days to give allowance to him for a period of time he spent in custody after his first arrest for the offences against Sascha Chandler before a Supreme Court Judge granted him bail.
The sentences will date from his second arrest.
The individual sentences are as follows: Trial 1- verdicts on 6th July 2009 - offences against Sascha Chandler Counts 1 and 18 concern gross acts of indecency each of which occurred in a cadet camp. Count 1 involved the offender insisting that Mr Chandler take his pants off and then he inserted a suppository into his anus; Count 7 concerned the insertion of an anal enema during a shower. Mr Chandler was 16 years old Sentences for each - 1 year imprisonment Counts 3,4,5,8,11,14,17,21,22,23,24: These were all aggravated indecent assaults involving touching the complainant in the area of his genitalia or engaging in masturbation. The aggravating circumstances were that the complainant was under the authority of the offender. All were unpleasant and unwanted assaults Sentence for each - 4 years Counts 7,10,13 and 16: These were all aggravated indecent assaults involving simulating homosexual intercourse. In my opinion, these were worse offences than the other aggravated sexual assaults. The aggravating circumstances were that the complainant was under the authority of the offender. All were unpleasant and unwanted assaults and alarmed the complainant. Sentence for each offence 6 years Counts 2 and 19: These were assaults occasioning actual bodily harm, which involved requiring the complainant to remove his pants, bend over and submit to a beating with a piece of wood on his bare backside. The beatings caused severe bruising and soreness and great pain and humiliation.They had an obvious element of sadistic sexual gratification Sentences for each offence 5 years Homosexual intercourse - Counts 6,9,12 and 15: These were objectively the worst offences committed by the offender on Mr Chandler. They involved putting his penis in the anus of Mr Chandler. Each offence caused pain, embarrassment and humiliation and each was a crime of the worst type, because of the obvious possibilities of the transmission of disease and the causing of permanent damage to the anus. Each offence warrants a sentence of 10 years. Trial 2- offences against 3 boys at Inverell Count 1- kiss at a skating rink: The offender invited the victim, P, whilst in a public area of a skating rink, to kiss him on the lips. This was his first step into seducing the complainant, it was done deliberately. Sentence 1 year Counts 2,3,5,6 and 9 indecent assaults involving the simulation of buggery: These offences involved requiring the victim to take his clothes off and then pretending to penetrate his anus with the penis of the offender. Vaseline was applied to the thighs of the boys and the legs of the offender. These offences were degrading and humiliating. Sentence for each 5 years Counts 4 and 15 indecent assaults involving masturbation: In my opinion, whilst these offences are serious and degrading, they are not as serious as the acts of simulated buggery Sentences: 3 years for each Counts 7,8,12 and 18 assaults: These were acts of beating the bare backside of the victims, variously with a hand, an electric jug cord and a feather duster. All of the assaults were cruel, inflicted pain and humiliation on the victim and had an element of sadistic sexual cruelty. Sentences for each offence 2 years Buggery - counts 10,11,13,14 16 and 17:These were the worst offences committed by the offender on the one victim he chose. They were humiliating, damaging painful and were crimes of the worst type. Sentence for each 12 years

[40]

Case Summary Table For the purpose of the present case the following decisions were identified as being relevant by one or both of the parties to the matter. CASE OFFENCE/SENTENCE SUMMARY PWB v R [2011] NSWCCA 84 (A) Indecent Assault on person < 16 years of age. (fixed 4 mths) The offender was the older brother of the two female victims. At the time of offence (A) (1987-88) the offender was 16-18 years of age and the first victim was around 12 years of age. For six years leading up to the first offence the offender had often touched the first victim's genital area. Shortly after the offence took place the victim received sexual education at school and confronted the offender. From that point onwards the offender did not repeat his conduct on this victim.At the time of offence (B) (1991) the offender was 20-21 years of age and the second victim was 5-6 years of age. The offence involved the offender touching the victim's genitals with his fingers underneath her clothes. This sexual touching began when victim was aged 4 and continued until she was aged 8. The family became aware of this abuse and reported both offences to police. The offender pleaded guilty. The offender had been sexually abused by a priest. He expressed shame and remorse and indicated a willingness to participate in programs to stop him re-offending. He is now married, with 3 children all of whom are supportive of him. Both of the victims are now married. (B) Indecent Assault on person <10 years of age. (npp 12 mths, further 12 mths) Priors: None (A) Indecent assault of child under 16 yrs (2 yrs 3 mths, npp 9 mths, consecutive on (B)) Form 1: indecent assault of child under 16 yrs (x3); incite act of indecency on child under 16 yrs. The offender committed the offences against his step-daughter over a three year period from 1979. The victim was aged between six and a half and ten years at the time of the offending. In counts (A)-(C) the offender simulated sexual intercourse by rubbing his erect penis between the victim's legs and on her vagina until he ejaculated, while they were both naked from the waist down. The offender also fondled the victim's vagina beneath her underpants while they were in a car (D). The victim complained to her mother about the offender's conduct in 1982, whereupon the offender sought treatment from a psychiatrist and did not re-offend. The victim complained to a police hotline in 1993 but the offender was not arrested until 2005 following a further complaint to police. (B) Indecent assault of child under 16 yrs (x2) (18 mths, npp 9 mths, concurrent on (C) and (D)) The offender pleaded guilty. A.J.B. v R [2007] NSWCCA 51 (C) Indecent assault of child under 16 yrs (18 mths, npp 9 mths, concurrent on (B) and (D)) Aged 32 yrs to 35 yrs during period of offending. Suffering anxiety neurosis and personality disorder at time of offences. The offender sought counselling and has not re-offended. (D) Indecent assault of child under 16 yrs 18 mths, npp 9 mths, concurrent on (B) and (C)) Priors: None. Aggregate Sentence: 3 yrs, npp 18 mths. (A) Buggery (head 7 yrs, npp 4 yrs 6 mths) Form 1: act of indecency on another male person; indecent assault on male (x6); procure act of indecency by male person (x2); assault (x2); buggery The offender took the 8 or 9 year old victim and other boys to various entertainment venues then took them home and committed two indecent assaults and an act of indecency on one of them (A & Form 1). The offender committed two acts of buggery, three indecent assaults and an assault on a different 7 or 8 year old victim (B & Form 1). Subsequently, the offender twice indecently assaulted, procured an act of indecency from and assaulted another 7 or 8 year old victim ((C) and Form 1). R v Bruce ROBERTS [2003] NSWCCA 309 (B) Buggery (head 2 yrs 6 mths, npp 2 yrs 6 mths, partly cumulative on (A)) The offender pleaded guilty. Aged 20 at first offence. Severe hearing disability. Arthritis and migraine sufferer. Protective custody. History of anxiety and depression. Risk of re-offending diminished by psychological and pharmacological intervention. Strong risk of suicide. Little prospect of rehabilitation. Has not committed a similar offence for 20 years. Little contrition. Unlikely to re-offend. (C) Indecent assault (fixed 18 mths, concurrent with (A)) Priors: stealing; buggery (x2); attempted buggery (x2); shoplifting. Previously imprisoned. Subsequent convictions for buggery offences in early 1980s. AGGREGATE: head 9 yrs 6 mths, npp 6 yrs 6 mths. (A) Buggery (x2) (head 8 yrs, npp 5 yrs) (B) Buggery (fixed 5 yrs, concurrent with (A)) (C) Indecent assault (x5) (fixed 2 yrs, concurrent with each and concurrent with (A)) (D) Indecent assault (fixed 1 yr, concurrent with (A)) The offender instructed the 8 year old male victim to take off his clothes. Then he inserted his penis into the victim's anus. Despite the victim's request to stop because it was hurting, the offender persisted for 15 minutes. The victim passed blood when he went to the toilet. On another occasion the offender inserted his penis into the anus of another 11 year old victim (A). The offender said to the 11 year old victim he wanted to " to put it inside". The victim said "no". The offender rubbed lubricant around the victim's anus and then jabbed his penis into the victim. The victim cried out in pain. He passed blood (B). The offender instructed the 8 year old and 11 year old victims on different occasions to masturbate him. The offender also massaged the victim's penis on different occasions and rubbed his penis between the victim's legs (C, D, E , F, G, H).The offender pleaded not guilty. Aged 38 yrs at first offence. Health problems. Has to serve most of his sentence in protective custody. First prison sentence. No evidence of contrition or remorse. No apparent prospect of rehabilitation. Serious sexual behaviour problems. Denied the offences. Relatively minor priors that happened a long time ago. R v Maxwell Raymond BARRY [2001] NSWCCA 304 (E) Commit act of indecency (x2) (fixed 1 yr, concurrent with each and concurrent with (A)) Priors: gross indecency; stealing; wilfully interfere with telephone; suppling a prohibited drug (x2). Not previously imprisoned. (F) Indecent assault (fixed 9 mths, concurrent with (A)) (G) Indecent assault (x2) (fixed 6 mths, concurrent with each other and concurrent with (A)) (H) Assault (fixed 6 mths, concurrent with (A)) AGGREGATE: head 8 yrs, npp 5 yrs (A) Buggery (min 4 yrs, add 2 yrs) Form 1: indecent assault upon male; assault with an act of indecency (x2); assault with act of indecency. R v Peter Harold Joseph PRITCHARD [1999] NSWCCA 182 (B) Assault with intent to commit buggery (fixed 3 yrs, concurrent with (A)) Offences spread over 19 years. (A) The victim went to the offender's room stating he was depressed. The offender, who was a priest, began to hug him and remove his clothes. The offender then sat on a bed and pulled down the victim's underwear, stood up behind him and inserted his penis into his anus. The victim was then dragged onto the bed where the offender penetrated the victim again, eventually ejaculating inside the victim. No facts given for (B) and (C).The offender pleaded guilty. Aged 38 at first offence. Offender a priest. Eight individual victims aged between 14 and 19. Most victims were novitiates, training before taking their vows. Serious breaches of trust. Immense impact on victims. Loss of ability to practice as a priest and teacher. (C) Assault with an act of indecency (x2) (fixed 2 yrs, concurrent with (A)) Priors: act of indecency. AGGREGATE: min 4 yrs, add 2 yrs. (A) Indecent assault male person (fixed 2 yrs, concurrent with (C)) (B) Assault person under 16 yrs with an act of indecency (fixed 2 yrs, concurrent with (C)) (C) Buggery (x8) (min 9yrs, add 3 yrs) (D) Sexual intercourse without consent with person under 16yrs (min 7 yrs 6 mths, add 2 yrs 6 mths, concurrent with (C)) R v Colin John FISK [1998] NSWCCA 21/7/1998 (E) Homosexual intercourse with male between 10 yrs and 18 yrs (x4) (min 7yrs 6 mths, add 2 yrs 6 mths, concurrent with (C)) The offender over the period 1974 - 1989 sexually abused three male victims. The victims were aged between 13 and 19 years. All three victims came from dysfunctional families and lacked supervision. Additionally as a result of the offences the victims are suffering from physical and emotional conditions. The charges are representative of a paedophilic lifestyle.The offender pleaded guilty. The offender was aged 26 at first offence in 1974. The accused provided assistance to authorities (Royal Commission in The Police Service). (F) Aid and abet homosexual intercourse on male between 10 yrs and 18 yrs (min 7yrs 6 mths, add 2 yrs 6 mths, concurrent with (C)) Priors: Drug, property, violent and driving offences. Previously imprisoned. (G) Assault person under 16 yrs with an act of indecency (x3) (fixed 3 yrs, concurrent with (C)) (H) Aid and abet sexual intercourse with person under 16 yrs (x2) (fixed 6 yrs, concurrent with (C)) (I) Sexual intercourse without consent with person under 16 yrs (x3) (fixed 6 yrs, concurrent with (C)) AGGREGATE: min 9 yrs, add 3 yrs (A) Buggery (x 6) (min 7 yrs 6 mths, add 2 yrs 6 mths) (B) Indecent assault (x 19) (fixed 4 yrs, concurrent with (A)) The offender engaged in sustained and exploitative paedophilic activity. The offences date from 1972 to 1980. There were five male victims (aged 9, 11 (x2) and 12 (x2) at the commencement of sexual activity in 1971). There were other victims the subject of the Form 1 charges, the youngest victim being 8. The boys were entertained at the offender's holiday home and at other locations including their homes, the offender having gained the trust of the parents and boys. He took photographs and videotapes of the activity.The offender pleaded guilty. Aged 29 at first offence. Regularly sexually assaulted at school. R v Peter Edward BARRETT [1997] NSWCCA 3/3/1997 (C) Assault with intent to commit buggery (x 2) (fixed 2 yrs, concurrent with (A)) Priors: Procure male. No prior imprisonment. (D) Procure an act of indecency with male (x 2) (fixed 12 mths, concurrent with (A)) Form 1: 44 offences. AGGREGATE: min 7 yrs add 6 mths, add 2 yrs 6 mths (A) Indecent assault when under the authority of the accused (4 yrs) (B) Indecent assault when under the authority of the accused (x 2) (2 yrs, concurrent with (A)) The offender lived in a converted bus at Grafton Showground. The offender had become a close friend of the victim's family through playing squash. The two indecent assault offences ((C) and (D)) occurred in the change room showers of the squash courts where the offender, victim, victim's brother and victim's father had been playing squash. The offender rubbed the victim's penis with hid hand. The victim was 9 years old.When the victim's father was hospitalised for a considerable time, the offender offered to relieve the victim's mother by accommodating the victim and victim's brother in his converted bus for 6 nights. The 3 indecent assaults when under the authority of the accused ((A) and (B)) occurred during this time while the victim was sleeping in the same double bed in the converted bus with the offender. The offender pleaded not guilty. The offender was 31 years old. The offender lacked paternal affection and attention when child. Judge found that the offences were out of character and that the offender was an excellent subject for rehabilitation and if handled properly would not offend again. R v Andrew Dean MCINTOSH [1988] SC 5/8/1988 (C) Indecent assault (2 yrs, concurrent with (A)) Priors: break, enter and steal; motor vehicle theft. (D) Indecent assault (2 yrs, cumulative with (A)). AGGREGATE: head 6 yrs, npp 2 yrs. (A) Act of Indecency with male <16 yrs (1 yr, concurrent with (B)) The victims were two brothers (aged 14 and 16). They were homosexual relationships where the boys were willing participants. The boys were, with their parents consent, frequently in the company of the offender. The offender pleaded guilty. The offender was 27 years old. He is married with two biological children and a child from wife's former partner. He co-operated with investigating police. R v Phillip George THOW[1985] NSWCCA 26/4/1985 (B) Buggery (x2) (5 yrs each to be served concurrently) Priors: driving offences, dishonesty offences, assault, demanding money with menaces (no sexual offences). Previously imprisoned. AGGREGATE: head 5 yrs, npp 3 yrs. (A) Indecent Assault (x2) (3 yrs each to be served concurrently) (B) Buggery (5 yrs, concurrent with (C), but cumulative to all other offences) (C) Indecent Assault (3 yrs concurrent with (B), but cumulative to all other offences) A): 1970 sexually assaulted two 13year old males in park after taking him ten pin bowling (B) & (C): 1978 assaulted 10y male in appellant's home unit.(D) & (E): 1978 assaulted 13y male after taking him to amusement places.(F): 1978 took indecent photos of 13y boy R v Michael John HILL [1979] NSWCCA 11/7/1979 (D) Indecent assault (3 yrs concurrent with (E) & (F), but cumulative to (A), (B) & (C)) All victims consented and there was no violence or terror involved. The offender pleaded guilty. The offender was 34 years old. Offender confessed to being attracted exclusively by male children. (E) Assault with intent to commit buggery (3 yrs concurrent with (D) & (F), but cumulative to (A), (B) & (C)) Priors: 2x sexual offences on males. Previously imprisoned. (F) Indecent Assault (3 yrs concurrent with (D) & (E), but cumulative to (A), (B) & (C)) AGGREGATE: head 11 yrs, npp 5 yrs. R v David John MILLER [1977]NSWCCA29/7/1977 (A) Indecent assault on a male (head 2 yrs, 6 mths, npp 6 mths) The victim was a 14 year old naval cadet who came into contact with the offender at a training establishment where the victim was being instructed. The offender was an able seaman attached to this training establishment. In a premeditated act, the offender sought permission from victim's parents to take him to a bbq, instead the offender took the boy to a motel room and supplied him with alcohol (both drank alcohol).The boy undressed and went to bed and shortly thereafter is when the offence occurred. The victim left early the next morning and told his parents. The offender was apprehended driving around looking for the victim. The offender pleaded guilty. The offender was 21 years old. The offender was found to occupy a position of quasi authority over the victim arising from their positions in the naval training facility. The offender found to be of prior good character. Priors: driving offence (nothing of significance) R v Raymond John DAVY [1975]NSWCCA 4/4/1975 (A) Buggery (9yrs, npp 4y 6m) The victim was 14 years old and was waiting for his father in Goulburn. The offender threatened the victim with a knife, terrifying him and leaving him no alternative then to submit to the offences committed on him, firstly near some bushes in a dark park and later in an abandoned house.The offender pleaded guilty. The offender had been drinking before committing the offence. The offender had co-operated with police. R v Barry Richard CLARKE and Kim Coulson CATHRO [1975] NSWCCA7/2/1975 (A) Buggery (x3) (Clarke: 15yrs, npp 8yrs) (Cathro: 11yrs, npp 5yrs) The offenders were in a homosexual relationship and committed the offences in concert against three separate boys. i) Victim was a 16 year old male who had left a dance shortly after midnight and was hitchhiking to his home in Caringbah. The two offenders stopped and offered him a lift in their panel van. The offenders told the victim that they were police. Clarke told the victim get into the back of the van in order for him to search the victim for drug. The back of the van was equipped with a mattress and pillows. Clarke removed the victim's clothes and committed an act of buggery on him. Clarke returned to front of van and then Cathro entered back of van and committed the same offence. The victim was detained for hours during which time other acts of buggery were committed on him by both offenders.ii) Victim was a 15 year old male hitchhiking at around 10pm in Cronulla. The offenders picked up the victim and drove him to an area behind Sutherland Hospital. The offenders informed the victim that they were police. Clarke produced a pistol and threatened the boy. The boy was told to enter the rear of the van where Clarke committed an act of buggery. Clarke returned to the front seat and Cathro entered the back of the van and committed the same offence.iii) Victim was a 16 year old male hitchhiker. The offenders picked him up and drove him to a desolate area of the Royal National Park, where he was detained in the vehicle. Clarke entered the back of the panel van where he committed an act of buggery on the victim. Clarke returned to the front seat and Cathro entered the back of the van where he committed another act of buggery on the victim.Both offenders pleaded guilty. Both offenders were aged 30 years old. Each offence involved considerable fear and violence. Clarke was the more dominant offender. Each offence was committed approx. 6 months apart. Priors: 22 x dishonesty offences (Clarke); none (Cathro). R v William James MURRAY [1974]NSWCCA30-8-1974 Indecent assault on a male person (x3) (4yrs, 6mths, npp 20mths) Two of the offences concerned homosexual acts committed by the offender with another adult on two 13y and 14y boys. The offender and his companion picked up the boys and provided them with beer. They drove the boys some distance and then without any overt violence committed a number of acts indecency on the boys. The third offence to place at the time of the committal proceedings for the first two offences. On this occasion the offender and the same adult companion picked up the 15 year old male victim and drove him to a flat in Bondi and there further acts of indecency of a homosexual nature were committed.The offender pleaded guilty. The offender was aged 34 years old. The offender was engaged in a homosexual relationship with the other man who accompanied him and who was also charged and sentenced with respect of the same conduct. The offender assisted police with investigating other unrelated offences (disassociated from homosexuality) leading to the successful apprehension and prosecution of other criminals. The offender repented the circumstances of these offences.

Regina v Andrew Dean MCINTOSH

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