27 There were a number of aggravating factors to be considered. The offences occurred while the applicant was on a Crimes (Sentencing Procedure) Act s 9 good behaviour bond in relation to an offence under s 527C of the Crimes Act (in relation to unlawful possession of property). The applicant had four prior convictions under s 61M of the Crimes Act and a conviction under s 78K (in relation to homosexual intercourse with a male person aged over ten years and under sixteen years). He had served a total sentence of 3 years and I month imprisonment commencing in 1992. These convictions disentitled the applicant to any leniency.
28 The applicant's personal circumstances were that he was 58 at the time of sentencing, having had a troubled upbringing as the result of his father's alcoholism and violence. He had married, but the relationship had broken down and he had separated from his partner. He had two children, but contact with them had been lost. There was psychological evidence tendered at the hearing below, suggesting that when imprisoned in respect of the earlier offence of homosexual intercourse with a male person aged over ten years and under sixteen years, the applicant was perceived to have shown remorse and good insight into his behaviour. He had undertaken some relevant courses. The subsequent offences showed that perception to have had no sound basis.
29 The first report from Dr Bruce Westmore referred to sexual contact with cousins as a ten year old and being fondled by a pastor at age 13 and later regular consensual sexual contact with an older male when aged 17. Dr Westmore recommended a sex offenders programme and that risk of re-offending could only be assessed when they were completed. He did not consider the applicant likely to be a paedophile, given the evidence of the victims' secondary sexual development. He noted limited past counselling and recommended more, so that the applicant's risk of re-offending could be assessed. Ms Young, a psychologist, assessed the applicant as in the moderate to high risk category for re-offending and also recommended further counselling.
30 Fresh evidence in the form of a further report from Dr Westmore was received without objection. This revealed more about the applicant's sexual contact with men when aged 16 years and older, that there had been consensual participation in sexual activity from a younger age, and that there was an attempted rape when he was 18, which had led the applicant to attempt suicide. The applicant had also indicated a desire to undertake courses to stop re-offending.
31 Dr Westmore suggested that the applicant might have 'ego-dystonic' homosexuality and that such males could be educated through counselling to redirect their sexuality towards age appropriate peers, which could occur after they become more accepting of their sexuality. Such males rarely engaged in sexual activity with children, being more likely to have anonymous adult based homosexual activity, or less rarely, some contact with underage but teenage children. Dr Westmore recommended that the applicant attend a sex offender's programme and that until he had completed such a programme, his levels of remorse, insight and capacity to change behaviours would not be fully understood and identified.
32 This evidence did not provide any sound basis upon which it might be concluded that the applicant is not likely to re-offend. As his Honour found below, there was but little in this material which could properly be given much weight by way of mitigation. Despite the punishment which was imposed in 1992 for an earlier similar offences and the courses undertaken while in custody, the applicant engaged in further sexual activity with children.
33 The applicant's offences and what is reflected in the agreed facts suggest no real remorse or acceptance of the applicant's wrongdoing. The second and third offences were committed in the context of a long, carefully orchestrated campaign of abuse of AR.
34 There was no issue that the applicant's early plea should lead to a 25% utilitarian discount, as his Honour accepted. As I have explained, there was little else in the evidence which may properly be given much weight, so far as mitigation is concerned.
35 In fixing sentences, I have concluded that the appropriate starting point, to reflect all of the matters referred to, is a penalty of 5 years for the second offence, reduced to 3 years and 9 months after the 25% discount is applied. As to the third offence, I have concluded that the appropriate starting point is a sentence of 7 years, reduced to 5 years and 3 months after the 25% discount is applied. It will be necessary to return to these sentences when considering the appropriate aggregate sentence and non-parole period.
Ground 3: The Sentences in Respect of the s 61M Offences were Excessive.
36 The maximum penalty for each offence was 7 years, with a standard non-parole period of 5 years. His Honour observed that the statistics relied on suggested "a medium range" of 3 years, with a non-parole period of 2 years for these offences. His Honour appears to have adopted a starting point of 4 years for each offence, before applying a 25% discount for the early plea, to arrive at a sentence of 3 years and a non-parole period of 2 years, in each case. There was no reason given for the conclusion that the standard non-parole period should not be imposed, although inferentially, as was submitted for the Crown, his Honour's starting point of 4 years, may reflect a view that the offences were each below the mid range.
37 On the agreed facts, it was submitted that the offences were each below the mid range, the fifth being at the very, very bottom of the range, albeit requiring a term of imprisonment. The other two offences, it was said, fell very close to the bottom of the range and did not require a significant custodial sentence, even having regard to the standard non-parole period. Further, it was submitted that each assault was of short duration, with no threats involved. In the case of the fourth and fifth charges, the victims were but days or weeks away from their sixteenth birthdays. In the fifth, the applicant had touched the victim's genitals only on the outside of his clothing. His Honour's reasons did not disclose whether these considerations were taken into account in coming to the same sentence in respect of each offence.
38 As was recently discussed again in Karl Eedens v R [2009] NSWCCA 254 at [24], a sentencing court must make an assessment of the objective seriousness of the offence in question with some specificity and a failure to do so may lead to the conclusion that the sentencing discretion has miscarried. In relation to these offences, his Honour did not indicate whether in his view they fell in the mid range, or below it. and did not explain the departure from the standard non-parole period. (See R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [117] to [120], discussed in Karl Eedens v R at [20] to [25]).
39 While his His Honour's view acknowledged that the pleas of guilty justified a departure from the standard non-parole period, but that it was nevertheless relevant as a guide or reference point for a mid range case, that general observation was a meaningless observation, in the absence of a determination as to whether offences 4, 5 and 6 fell within that mid range.
40 While the fifth charge was plainly not as serious as the other two, they each occurred after the applicant's offences against the other two victims had been uncovered. Still, the applicant did not desist, but looked for and found three other victims. He persisted until his arrest after his fifth victim revealed the applicant's assault to a parent. During these offences each victim was in the applicant's company as a family friend. Two of the offences occurred while the victim was at the applicant's home and the other, while in a motel room alone with the applicant.
41 The fourth offence occurred despite PG's protests. The applicant lay on top of him, holding him down, after PG had fallen to the ground. He forced his hand down the 15 year old's pants and took hold of his penis. PG had to use all of his strength to push the applicant off, so that he could escape. The fifth offence occurred when the applicant placed the palm of his hand on DM's testicles and penis, on the outside of his pants. The applicant laughed, but desisted, when DG told him to 'get out of it, don't do that'.
42 The sixth offence involved the applicant forcing his hand down 12 year old ZG's pants and taking hold of his penis, while ZG struggled to escape his grip and run from the motel room, where they were alone together.
43 I am not persuaded that offences 4 and 6 can properly be characterised as falling below the mid range of objective gravity. In my view, the objective gravity of these offences more than justified a nominal starting point of 4 years imprisonment. I accept that the fifth offence is not a mid range offence. However, given the circumstances outlined above, the sentence ultimately imposed by his Honour for that offence is also not manifestly excessive. It follows that this ground of the appeal must be rejected.