Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: R v Brown [2012] NSWCCA 199
• Hearing dates: 31 August 2012
• Decision date: 18 September 2012
• Before: Macfarlan JA at [1]; McCallum J at [2]; Grove AJ at [3]

Decision

1) Crown appeal allowed.

2) Sentence imposed in the District Court quashed.

3) In lieu thereof, the respondent sentenced to an aggregate term of imprisonment consisting of a non-parole period of 12 years commencing on 24 November 2011 and expiring on 23 November 2023 together with a balance term of 8 years commencing on 24 November 2023.

4) The earliest date of eligibility for parole specified as 23 November 2023.

• Catchwords: CRIMINAL LAW - crown appeal - inadequacy of sentence - buggery - homosexual intercourse with male between 10 and 18 - act of indecency with a male - act of gross indecency - indecent assault - sexual intercourse without consent - assault on a male accompanied by an act of indecency - aggravated act of indecency with a person under the age of 16 years - indecent assault of a male - act of gross indecency
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Parole of Prisoners Act 1966; Sentencing Act 1989
• Cases Cited: AJB v The Queen [2007] NSWCCA 51; (2007) 169 A Crim R 32; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; Shannon v R [2006] NSWCCA 39
• Category: Principal judgment
• Parties: Regina (applicant); James Michael Brown (respondent)
• Representation: Counsel: Ms N Noman (applicant); Mr P Rosser QC (respondent); Solicitors: Solicitor of Public Prosecutions (applicant); Marsdens Law Group (respondent)
• File Number(s): 2010/206963

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2012-03-02 00:00:00
• Before: North DCJ
• File Number(s): 2010/206963

Judgment

1 MACFARLAN JA: I agree with Grove AJ.

2 McCALLUM J: I agree with Grove AJ.

3 GROVE AJ: This is a Crown appeal asserting the inadequacy of sentence imposed on the respondent on 2 March 2012 at East Maitland District Court.

4 The respondent there pleaded guilty to an indictment containing 27 counts and asked for a further 20 offences to be taken into account in sentence assessment. Every offence involved sexual misconduct visited upon young males who ranged in age from 8 to 17 years. The indictment consisted of 2 counts of buggery, 4 counts of homosexual intercourse with a male aged between 10 and 18, 2 counts of committing an act of indecency with a male, 1 count of committing an act of gross indecency, 1 count of indecent assault, 1 count of sexual intercourse without consent and 16 counts of assault on a male accompanied by an act of indecency.

5 The offences sought to be taken into account on various Forms 1 consisted of 6 charges of aggravated act of indecency with a person under the age of 16 years, 5 charges of homosexual intercourse with a person aged between 10 and 18 years, 5 charges of indecent assault of a male, 3 charges of committing an act of indecency with a male person and 1 charge of committing an act of gross indecency.

6 There were 19 individual victims comprehended within the counts in the indictment and one additional individual victim specified in a charge on a Form 1. There were therefore a total of 20 victims.

7 The learned sentencing Judge imposed an aggregate sentence of 10 years imprisonment with a non-parole period of 6 years, the latter specification reflecting a finding of special circumstances which he made. As required, when imposing an aggregate sentence, his Honour expressed indicative terms applicable to the separate counts. Those indications were a term of 12 months' imprisonment on four counts (three assault with an act of indecency; one act of gross indecency); a term of two years' imprisonment on four counts (three assault with an act of indecency; one indecent assault); a term of 2 years and 6 months' imprisonment on 10 counts (assault with an act of indecency); a term of 3 years' imprisonment on two counts (assault with an act of indecency); a term of four years on two counts (one buggery, one homosexual intercourse with a person aged between 10 and 18 years) and a term of five years' imprisonment on five counts (one buggery, three homosexual intercourse with a person aged between 10 and 18 years, one sexual intercourse without consent).

8 The 20 charges on the various Forms 1 were attached to appropriate indictment counts. The offences were committed over a period of about 22 years between 1974 and 1996. At the time of commission of the offences, the respondent was aged between 24 and 45 years.

9 I will later specify the statutory provisions against which the offences were committed but it needs to be observed that over the long period there were legislative changes that took effect.

10 By way of description, it can be said that the offences were historical in nature and therefore sentence assessment involved taking into account sentencing practice as at the date of offending: R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368. Further, prior to the Sentencing Act 1989, which took effect from September 1989, impositions of sentences of imprisonment attracted the operation of the Parole of Prisoners Act 1966 under which a practice of setting the non-parole period was different from any statutory proportions legislated in 1989.

11 Of course, it was not mandatory to apply the 1989 Act statutory formulation and the statute itself provided facility for departure from it. It is also noted that pursuant to the regime under the 1966 Act, remissions could be earned by a prisoner although such remissions were applicable only to head sentence and not to non-parole period.

12 The offences committed by the respondent were all contrary to provisions in the Crimes Act 1900 as they existed from time to time. The section references which follow are all to provisions of that statute.

13 The table hereunder shows the various provisions with the description of the offence in short form, together with the applicable prescribed maximum penalty.

61E(1)	Indecent Assault	4 years' imprisonment
61I	Sexual intercourse without consent	14 years' imprisonment
61M(1)	Aggravated indecent assault	7 years' imprisonment
61O(1)	Aggravated act of indecency	5 years' imprisonment
78K	Homosexual intercourse between 10 and 18 years	10 years' imprisonment
78Q	Act of gross indecency	2 years' imprisonment
79	Buggery	14 years' imprisonment
81	Indecent assault male	5 years' imprisonment
81A	Commit act of indecency with male	2 years' imprisonment

14 Legislative changes should be noted. Sections 79 (buggery), 81 (indecent assault male) and 81A (commit act of indecency) were repealed on 8 June 1984 and replaced with charges under s 78. Section 78K (homosexual intercourse), which replaced the offence of buggery and 78Q (gross act of indecency), which replaced the offence of s 81 (Indecent assault male) commenced on that date. Section 61E(1) was introduced from 14 July 1981 and was repealed on 19 March 1991. On 17 March 1991, the offence of s 61I (sexual intercourse without consent) was introduced along with s 61M and 61O, aggravated indecent assault and aggravated act of indecency respectively.

15 The Notice of Appeal advances four grounds, namely:

Ground 1: The sentencing Judge failed to reflect the principle of totality in the aggregate sentence.

Ground 2: The sentencing Judge erred in his approach to the offences of anal penetration.

Ground 3: The sentencing Judge erred in erroneously identifying the maximum penalty for count 19 as 2 years when it was 5 years.

Ground 4: The sentence is manifestly inadequate.

16 The sentencing proceedings were conducted upon the tender of an agreed statement of facts. These were lengthy, but it is necessary to recapitulate them as the detail therein reveals, with stark emphasis, the cumulative enormity of the respondent's crimes.

Count 1 - CS

(Section 81 Crimes Act - indecent assault male)

3. CS was born in November 1961. His family all attended the Kurri Anglican Church. His mother and father had divorced, and his mother remarried.

4. In 1974, CS became an altar boy, which entailed him assisting the Minister during services.

5. CS was a member of the Youth Group. He recalled the group as being fun and active, with games nights and trips away. His first memory of the offender was in his capacity as Youth Group leader.

6. He recalled travelling in the car with the offender to the St Albans Boys Home to pick up PD, a young orphan who was a state ward and had been placed at the Boys Home. The car the offender owned was a burnt orange coloured Triumph.

7. On occasions in 1974 the offender invited CS to stay overnight with some other boys at a location in Morpeth, in a dormitory style room. There was minimal supervision and some of the boys smoked cigarettes. They all stayed there the night, then returned to the offender's home in Kurri the next day. There they played music; the offender had an expensive stereo system and played popular music. The offender offered wine to the children, and CS drank some and became intoxicated. He went to the bedroom and lay on the bed.

8. He woke through the night and found that the offender was in bed with him. The offender put his hands down the front of CS' pants and played with his penis and stroked it for a while. CS was still feeling intoxicated but told the offender to stop, and threatened to tell his parents.

9. This was between 24 December 1974 and 1 June 1975 when CS was 13 years old, and the offender was 24.

10. Some months later, the offender invited CS through his parents, to go away motorbike riding at Bathurst. CS was very interested in motorbikes at that time. They went to Bathurst, and the offender again offended against CS.

11. After that occasion, CS stopped going to Youth Group and did not go to the offender's house again.

Count 2 - PD

(Section 81 Crimes Act - indecent assault male)

12. PD was born in 1962. His adopted mother had died and he had been made a ward of the state and was placed at St Albans Boys Home, which was run by the Anglican Church. The offender offered to take PD for the 1975 August school holidays. PD accepted and this was allowed.

13. The offender picked PD up and returned to his home in Kurri. He told PD he only had one bed, and that PD would have to share that with him. He recalled the offender cuddling him at night.

14. During the evenings, the offender would drink, and provide to PD wine with dinner.

15. After one such evening, PD was woken through the night by the offender causing him to have an erection. The offender said, "It's okay, me and Michael do this all the time." Michael was the name of a priest known to PD. The offender removed PD's underpants and put his mouth over PD's penis and moved his head up and down. PD felt scared and did not know what was going to happen. The offender had moved around on the bed so his penis was near PD's head, and the offender was masturbating himself.

16. PD stopped the offender by saying he had to go to the toilet. He got back into bed, and moved as close as he could to the wall. Nothing further occurred that evening.

17. This happened most nights of the holidays.

18. This offence was between 1 August 1975 and 31 August 1975 when PD was 12 years old, and the offender was 25.

19. At the end of the holidays, the offender showed PD photographs of motorbikes and said he would have to get one for PD so they could go riding together.

20. This is a representative count with offences occurring until 1977.

21. In 1996, PD complained to police, and made a statement. Other evidence was compiled and on 16 September 1997 the offender was charged. The offender contested the matter and a committal hearing was directed, with PD giving evidence. On 29 July 1998 the matter was dismissed after evidence and the offender was discharged. That evidence included the details of the offence for which the offender now pleads guilty.

Count 3 - PH

(Section 81 Crimes Act - indecent assault male)

22. PH was born in 1963 in Kurri and grew up there. His mother was a scripture teacher at Abermain Primary School. The family was involved with St Mary's Anglican Church in Weston and Abermain. The offender ran the Youth Group at St Mary's as well. They would all occasionally go to St Albans.

23. PH recalled thinking of the offender as someone he could trust. He recalled that he owned several cars, and would drive them on the speedway.

24. In 1973 or 1974 the family moved to Kurri, and began to attend the Anglican Church there. He would go to visit the offender at his home. He recalled the offender had dimmer switches for the lights, listened to popular music, had beanbags, and an above ground pool. He would [go] to and swim in the pool after school or on weekend. On one occasion, the offender took PH away with him to Bathurst to see the racing cars, and they drove together on the race track in the Triumph car the offender owned.

25. While at Bathurst they stayed at the offender's sister's house, sharing a bedroom and a double bed.

26. One evening PH woke feeling a hand on his penis. The offender was pressed up against him and had removed PH's penis from his pyjama pants. He masturbated PH until he ejaculated.

27. PH was too upset to go back to sleep, and was frightened and embarrassed.

28. When PH returned home a couple of days later, he told his mother what had happened. As a member of church, and the offender holding a high position in church, she did not believe him. She told him to not say things like that.

29. PH stopped going to Youth Group after that event, and had no further association with the offender.

30. This offence was between 1 June 1976 and 30 June 1976 when PH was 14 years old and the offender was 26.

Count 4 - LW

(Section 81 Crimes Act - indecent assault male)

Plus Form 1 with one offence (Offence against IR, section 81 indecent assault male)

31. In 1964 LW was born in Kurri, and he grew up in the area. His parents were strict but loving, and did not drink alcohol or swear.

32. He was introduced to the offender by a 12 year old friend and LW found the offender's lifestyle to be very different to that in which he had been brought up. The offender drank alcohol and offered it to the boys and would regularly watch pornographic movies with them. He became a regular visitor to the offender's house, and would go most Friday nights and drink alcohol. The offender would take him away on trips with his friends. He remembered meeting PD during these times.

33. One evening, LW had arranged with his school friend to sleep over at his house. His friend's mother refused and LW felt stuck as he had already told his mother it was all right. LW and his friend went to the offender's house and it was agreed that LW would stay the night there.

34. That evening, LW had been drinking wine and watching pornographic movies with the offender. He was tired and the offender showed him to the bedroom and put another pornographic movie on, and sat on the floor. LW fell asleep.

35. Through the night LW woke up to feel the offender rubbing his penis and testicles. His pants had been opened. LW jumped up and demanded to know what the offender was doing. The offender said "Sorry, I've never done anything like this before, don't tell anyone." The offender left the room. LW remained frightened through the night, and blocked the door with a chair.

36. LW was too afraid to tell his parents. He never went back to the offender's house.

37. This offence occurred between 1 November 1977 and 20 December 1977 when LW was 13 years old, and the offender was 27.

38. In relation to this matter, the offender asks the Court to take into account one offence committed against IR.

39. IR was born in 1962 and his family moved to Kurri when he was 10 years old. He became interested in the Anglican faith, and started to attend church to learn more about it. He was friends with PM and became a server at church. He joined the Youth Group. During one time at Youth Group, when IR was 14 years old in 1976, the offender kissed him on the lips saying "I will win and have a relationship with you." This was in front of IR's mother, and in the context of the offender being in an argument that IR was old enough to decide if he wanted to commence a relationship with the offender. IR never put himself again in a position where he would be alone with the offender.

Count 5 - GE

(Section 81 Crimes Act - indecent assault male)

40. GE was born in Newcastle in 1964, and his family were members of the Anglican Church. His father was on the church council and was a churchwarden. By the age of 10 or 11 GE was assisting in services as an altar boy and in high school he joined the Church of England Boys Society. This group conducted camps and games activities for the boys.

41. In 1977 the offender attended the Wallsend Anglican Church, which is where the E family worshipped. He would bring with him PD.

42. One evening the offender invited GE to stay at his house overnight. GE was keen to go, and recalled the PD was there that night.

43. The first evening GE was there, the offender gave him an alcoholic drink. He put a pornographic video on to watch. GE remembered feeling very intoxicated.

44. He recalled lying of the offender's bed. The offender had removed GE's penis from his pants, and was sucking it. GE did not know what to do. The offender continued to do this until GE ejaculated. He ran out of the house and did not return until morning. When he returned the offender asked where he had been and told him he was in trouble with his parents for running away.

45. He had no other contact with the offender.

46. This offence occurred between 1 June 1977 and 30 June 1977 when GE was 14 or 15, and the offender was 27.

Count 6 - PM

(Section 81 Crimes Act - indecent assault male)

47. PM was born in Maitland in 1963, and the family moved to Kurri when he was 2 years old. The family went to the Kurri Anglican Church, and PM attended Sunday School and then Youth Group. At about age 8 years he became an altar boy, and his duties varied between carrying the candle or assisting with preparations for communion. He recalled they would call the offender "Brother Jim."

48. PM attended Youth Group from about age 14 years, and remembered this being a lot of fun, with games, trips and camps. At that time he regarded the offender as someone he could trust. He would visit the offender at this house, and recalled the offender owned a mini moke and a Triumph car. They would listen to music and watch television. The offender would offer and provide alcohol to PM; he was not allowed to drink at home and his parents did not drink.

49. On occasions when the offender gave him alcohol, he would play pornographic videos. While the offender did not tell him to not tell, PM believed that to be a tacit understanding considering the family he came from.

50. One evening PM went to the offender's house. There were other people there at first but after a while they left. The offender gave PM port to drink and after a while PM became so intoxicated he lost consciousness. There had been a pornographic movie playing.

51. PM regained consciousness to find the offender kneeling in front of him with his pants off. The offender was masturbating PM's penis.

52. PM asked the offender what he was doing. The offender replied that it was all right, and to not worry about it. PM passed out due to his level of intoxication.

53. This offence occurred between 30 January 1977 and 30 November 1977 when PM was 14 or 15 and the offender was 26 or 27.

Count 7 - RB

(Section 81 Crimes Act - indecent assault male)

Plus Form 1 with 1 offence (Section 81A commit act of indecency with male)

Count 8 - RB

(Section 79 Crimes Act - Buggery)

Plus Form 1 with 3 offences (Section 81 indecent assault male x 2; Section 81A commit act of indecency with male)

54. RB was born 28 December 1965 at Kurri, and was raised in the area. He attended church with his grandfather, and in about 1974 became an altar boy. The offender was known to him as "Brother Jim".

55. RB attended the Youth Group run by the offender and remembered him at that time as "the cool guy", and the Youth Group activities were so much fun. RB attended camps away. On one occasion at camp, the offender found RB smoking. The usual consequence of that was to be immediately sent home and the parents informed. The offender took RB back to the dorm room office and made him wait for a while, and then told him he would not tell RB's parents, or take him home.

56. RB would visit the offender at this home, as did many other children. He recalled the offender owning a good stereo system and playing popular music.

57. During these times, the offender would touch RB on the genitals on the outside of his clothes. This would stop if someone else walked in. The offender would put his finger to his lips and say, "Don't say anything." This was between 1 December 1979 and 28 December 1979, and one of those occasions forms the basis for Offence 1 on the Form 1 being taken into account for Count 8. It is a representative count.

58. The offender allowed children including RB to smoke at his house, and told RB "I won't say anything." This continued over the course of the year.

59. In late 1980 RB was staying at the offender's house, and he slept in the offender's bed. The offender told him that all the boys did that, it was normal.

60. During the night RB was woken by the offender touching his penis. The offender told him it was all right and that as he had an erection it must have meant he was enjoying it. The offender moved down on the bed and performed fellatio on RB, until RB ejaculated. RB felt scared and ashamed.

61. The offender asked him what he was worried about, and RB replied he was worried about his parents. The offender told him "I understand but parents don't, ... don't normally understand this. That's why they couldn't know anything and why you can't tell your parents. Your parents won't respect you, they're older and won't understand and people go to gaol for these types of things." RB interpreted that as if two males had sexual contact, they would both go to gaol.

62. The offender would take RB to Boat Harbour to stay. On one occasion the offender put KY jelly onto his penis. He took RB's hand and placed it over his (the offender's) penis, and masturbated until he ejaculated. The offender then performed fellatio on RB until he ejaculated. The fellatio offence is Count 7 for sentence, and the masturbation refers to Offence 1 on the Form 1 to be taken into account for Count 7 on the indictment. The offences occurred between 28 December 1979 and 28 December 1980 when RB was 14 and the offender 29 or 30.

63. The following year around Easter 1981, the offender again took RB away with him to Boat Harbour. One evening, the offender gave RB wine with dinner and more after others had left for the evening. The offender began to touch RB on his penis, and this evolved into mutual masturbation (Offence 2 on the Form 1 for Count 8). The offender asked RB to suck his penis and RB performed fellatio on the offender for a short time (Offence 3 on the Form 1 for Count 8). They lay down on the bed together, and the offender pushed his penis into RB's anus (Count 8 on the indictment). This was momentary, but caused RB severe pain. He got out of bed and went to the bathroom. He found he was not bleeding and felt immense relief; he thought that if he was bleeding he would need to go to hospital and his parents would find out. RB was 15 at the time of this offence and the offender was 31.

64. RB did not go to see the offender for a while, although there was one later incident.

Count 9 - NH

(Section 81 - indecent assault of male)

Plus Form 1 with 1 offence (Section 78Q - act of gross indecency)

65. NH was born on 10 March 1969, and his family moved to Kurri when he was young.

66. NH's family would have barbeques for work colleagues and friends, and it was at one of these gatherings that he met the offender. The offender became good friends with NH's father. The offender would offer money to NH to wash his car.

67. One afternoon NH had come into the offender's house after washing his car. The offender walked over to him and put his hand on NH's genitals on the outside of his shorts, saying, "Have you got big balls?" This offence relates to Count 9 on the indictment. The offender removed his hand and walked away. This occurred between 1 January 1981 and 31 December 1981.

68. This is a representative count, with similar offences occurring over the course of that year.

69. NH recalled meeting another boy named JP at the offender's house, and they would go dune buggy riding with the offender. One occasion he also went to Bathurst with the offender.

70. Between 10 March 1986 and 10 March 1987, the offender took NH away to Boat Harbour with him. JP was also there. One morning the offender masturbated NH in bed. (This relates to Offence 1 on Form 1 being taken account on sentence for Count 9 on indictment). NH was around 17 years old at this time and the offender 36 or 37.

71. NH did not disclose this until he made his statement for this matter, and thought he was the only one this had happened to.

Counts 10 and 11 - RM

(Section 81 Crimes Act - indecent assault male)

72. RM was born on 4 September 1970. The family moved around quite a bit, and his parents divorced when he was quite young due to domestic violence. The offender's [sic, complainant's] father was introduced to the offender by a family member and they became friends. RM called the offender "Uncle Jim". The M family would go over for barbeques and gatherings, and there were always lots of children there. The offender would sometimes sit RM on his lap. RM's mother recalled the offender was particularly kind to her during the break down of her marriage.

73. The offender at this time had a red dune buggy, lots of videos to watch on television and a spa. These were all things in which the child RM was interested.

74. One evening, RM stayed the night with the offender. This was between 1 January 1981 and 27 February 1982 when he was 11 years old. The offender asked RM if he wanted to have a spa, and RM was very excited as he had never had one before. After they got in, the offender pulled off RM's shorts and underpants. The offender placed his mouth around RM's penis and performed fellatio on him until he ejaculated. This relates to Count 10 on the indictment. RM had no idea what was happening. The offender asked him whether he enjoyed it. Later that night, the offender said, "You can't tell anyone what we do out here. We have to keep it to ourselves."

75. There were other incidents over this period of time, with the offender encouraging RM to perform fellatio on him, masturbation, and fellatio on RM.

76. Between 1 January 1984 and 30 March 1984 when RM was 13, he rode his bicycle to the offender's work place in East Maitland. The offender called him over, and undid RM's trousers. The offender got onto his knees and performed fellatio on RM until he ejaculated. This relates to Count 11 on the indictment. The offender said, "You're old enough. This is between us." RM recalled being confused about this behaviour.

77. This happened every day for the following 3 weeks.

78. At the time of the offending, RM was between 11 and 13 years of age and the offender was 31 to 34 years old.

79. RM complained to his mother not long after this, and she said, "Shut up, I don't believe you, you're nothing but a liar, you're just a piece of shit." RM was angry with this reaction as the offender had previously warned him that no one would believe him.

Count 12 - JM

(Section 81 - indecent assault male)

Count 13 - JM

(Section 79 - buggery)

Plus Form 1 with 1 offence (Section 81 - indecent assault male)

80. JM was born in August 1974 and is the younger brother of RM. He would visit the offender in the company of his father, and the offender would pick him up and cuddle him.

81. On one occasion JM's father arranged for JM to stay the night with the offender. At this time JM was 8 or 9 years old and the offender was 33.

82. The offender suggested that JM get into the spa, and he readily accepted as he was excited to try it. The offender gave JM a glass of champagne which he drank. He also saw the offender heating a substance over a hot plate, which then gave off a funny smell. JM saw the offender lean over that and inhale the smoke through a straw. The offender gave the straw to JM and told him to take a lot of deep breaths and suck in the smoke. JM did so, and recalled a sensation of his head spinning.

83. After this, the offender took JM back to the spa and gave JM the champagne to drink, which he did. He took JM's shorts off. After some games, the offender lifted JM's body up to float in the water, put his mouth over JM's penis and performed fellatio on him. JM recalled being in a spinning daze. (This relates to Offence 1 on the Form 1 to be taken into account on sentence for Count 13).

84. The offender picked up JM and took him inside, laying him on the bed. He again performed fellatio on JM. This is Count 12 on the indictment. He put his penis into JM's mouth, but he gagged and kept turning away.

85. The offender got onto the bed behind him and pushed his penis into the boy's anus. JM recalls feeling pain, and he could not recall much after that happened, as he was so intoxicated. This was the only occasion on which an offence occurred, as JM never wanted to go back to the house again. This offence is Count 13 on the indictment.

86. He did not tell anyone about his until he was an adult.

87. The offences occurred between 1 January 1983 and 30 December 1983.

Counts 14 and 15 - PB

(Section 81 - indecent assault male x 2)

88. PB was born 15 January 1970 in Kurri and was raised in the area. His auntie would take him to church and he was encouraged to join the Youth Group, led by the offender. The offender had visited PM's aunt at her home and she had introduced him to the offender. PB remembers the offender was restoring a MG in his garage, and drove a little sports car.

89. Between 1 January 1983 and 30 December 1983 the offender took PB away on a trip to Bathurst, and they stayed in a hotel in a double bed. After his shower at night, PB came into the main room and saw the offender had his penis exposed, and this was erect. The offender asked questions about whether he had had a wet dream, and that he wanted to see PB's penis.

90. The offender took PB's hand and put it around the offender's penis and masturbated. He ejaculated into the towel.

91. The offender then held PB's penis and masturbated him. This forms Count 14 on the indictment.

92. The following day the offender took PB for a drive around the Mount Panorama race track.

93. After returning home, there were occasions when the offender would take PB out for rides on a three wheeled motorcycle.

94. In about October of 1983, PB was staying the night at the offender's house. During the night the offender came up close behind PB and told him to take his pants off. The offender then rubbed his erect penis between PB's buttocks. This forms Count 15 on indictment. That offending ended with mutual masturbation.

95. After this time PB never returned to the offender's house.

Count 16 - ST

(Section 81 - indecent assault male)

Plus Form 1 with one offence (81A - commit act indecency)

96. ST was born 17 January 1967, and was born and raised in Kurri. ST had become interested in religion after scripture classes, and his parents supported him when he began to go to church. He remembered meeting PD at the offender's house.

97. The offender broke his leg in the early 1980's, and ST was paid by the offender to help him out around the house and yard. During this time the offender invited ST into his house and asked him if he had ever watched "porn" before. The offender had a VCR which ST had never seen before. The offender put a pornographic video on and they watched it. The offender said, "You'd better not tell anyone about watching porn".

98. ST would visit the offender regularly on a Friday night, and the offender would give him wine and other alcoholic drinks. On one occasion the offender asked him if he masturbated. They were watching a pornographic movie and drinking wine. The offender took his penis out of his pants and began to masturbate until he ejaculated. (This is Offence 1 on the Form 1 for Count 16). He told ST that was how to masturbate. The offender ejaculated. ST also masturbated. This was between 1 March 1980 and 30 December 1980 when ST was 13 years old and the offender was 30.

99. This sort of behaviour happened frequently, with ST going to the offender's house, watching pornographic movies, drinking alcohol and masturbating. The offender discussed sexual activities with ST. He showed ST a vibrator.

100. One evening when ST was 15 he stayed the evening at the offender's house. The offender had given ST alcohol and they watched a pornographic movie. The following morning the offender put another such movie on to watch and ST developed an erection. The offender pulled down ST's shorts and put his mouth over his penis. He performed fellatio on him until ST ejaculated. This offence is Count 16 on the indictment, and occurred between 1 May 1983 and 30 August 1983.

101. Offences of this type occurred on other occasions as well, this is a representative count.

102. On another occasion when ST stayed the night in the company of other boys, the offender said to him "I wanted to lean over and suck you off."

103. These offences occurred when ST was aged between 13 and 15 years.

Count 17 and 18 - PK

(Section 81 - indecent assault male; Section 78K - Homosexual intercourse male between 10 and 18 years)

Plus Form 1 with 3 offences (Section 78K x 2 - Homosexual intercourse; Section 81 - indecent assault male)

104. PK was born 25 September 1968, and was raised in the Kurri area. His family attended the Anglican Church at Kurri, and was an altar boy from the age of 8 year. PK's mother and siblings attended church, but his father only went on special occasions.

105. The offender became a family friend, and would take PK and his brother to Boat Harbour, for rides on the mini moke and in his Triumph car.

106. When PK was 13, it was arranged between his mother and the offender that he would do some work experience with the offender, and PK was to stay over the night before that began. He slept in the same bed as the offender.

107. When PK was 14, the offender showed him a pornographic video, and gave him a glass of wine. PK said he was not allowed to, but the offender told him it was okay, he wouldn't tell anyone. During the movie, the offender moved closer to PK and began to touch him on his penis on the outside of his clothes, squeezing and rubbing until PK developed an erection. The offender moved them into the bedroom and they kept watching the movie. The offender said, "This is how everyone finds out about sex". After a while PK ejaculated. (This is Offence 3 on the Form 1 being taken into account on sentencing for Count 18 on the indictment).

108. The offender then masturbated himself until he ejaculated. PK was staying there the night, and in the morning the offender again played with PK's penis until he ejaculated and the offender had PK masturbate the offender until he ejaculated. That afternoon after the offender dropped PK back home, he said, "Don't say anything to anyone about the wine or what we watched or did last night." The offender had given him a lot of money after his day's work.

109. The offender offered work experience to PK again in the September 1983 school holidays, and PK accepted. He was 14 or just 15 at this time. Again he stayed the night with the offender. The offender gave him wine with dinner and port after dinner. Again the offender put a pornographic video on to watch, and masturbated PK until he ejaculated and had PK masturbate him. After a while the offender commenced to suck PK's penis, saying, "It'll be okay, it will feel good". The offender performed fellatio until PK ejaculated. This is Count 17 on the indictment. The following day the offender paid PK for his work.

110. When PK was 15 the offender again offered to take him for work experience in the holidays. The offender offered him marijuana oil on the end of a cigarette. PK felt tired after using that, and went to bed. The offender followed him and lay down in bed with him. The offender touched PK's penis until he obtained an erection and then performed fellatio on him. (This is Offence 1 on the Form 1 being taken into account on sentencing for Count 18 on the indictment). PK was starting to feel very ill from the effects of the cannabis oil. The offender instructed PK to put his penis into the offender's anus, and PK did so. (This is Offence 2 on the Form 1 being taken into account on sentencing for Count 18 on the indictment).

111. The offender then told PK to lay down, and he inserted his penis into PK's anus. This is Count 18 on the indictment. This hurt him a great deal and he started to cry. PK spent the rest of the night in the bathroom vomiting from the effects of the cannabis oil. Again, when he was dropped off at home the following day, the offender said, "Are you all right, don't say anything to anyone and we will keep this between ourselves." Again, PK agreed to do so. The offender paid him for the day.

112. That was the last offence against PK.

Counts 19, 20, 21 and 22 - JP

(Section 81 - indecent assault male x 2; Section 81A - commit act of indecency with male; Section 78K - homosexual intercourse with male between 10 and 18 years)

Plus Form 1 with 3 offences (Section 78K - Homosexual intercourse x 3)

113. JP was born 27 June 1971, and was born and raised in the Kurri area. His father abandoned his mother when JP was very young. He was the youngest of 3 children. JP's older brother knew the offender, and would go bike riding on quad and three wheeled bikes, and go on other outings. The family would go to barbeques at the offender's house. The offender became close friends with JP's mother and she would accompany him to work dinners and so on. The family began to attend Kurri Anglican Church. In 1983 JP was baptised and confirmed, and became a server at the church, assisting the offender. JP also began to accompany the offender to inter-parish events at different churches.

114. The offender began to offend against JP when he was 11, before the time he was baptised. JP thought that was a natural part of their friendship. JP would stay nights at the offender's house, and he was very happy with the enjoyable things the offender would do with and for their family. At about his time JP's mother began a relationship with a man who was quite violent towards JP. He took any chance he had to leave the home and stay with the offender. When he stayed there, he shared the offender's bed. Usually they slept naked.

115. One occasion when JP was staying the night, the offender began a conversation with him about touching and how good it felt. The offender took JP's hand and put it around the offender's penis, and told JP to masturbate him. He gave him directions about faster or slower, and after a while the offender ejaculated. JP was not sure how he felt about that, except that he knew the offender was happy with him. This offence is Count 19 on indictment.

116. This occurred between 11 January 1983 and 27 June 1983 when JP was 11 years old, and the offender was 33.

117. This type of offence became frequent, and the offender would give also JP "love bites" on his neck, rub baby oil over his body, and instigate mutual masturbation. The offender told JP he would enjoy it even more once he was able to ejaculate. JP felt that the offender was proud of him for these actions.

118. During this time the offender performed fellatio on JP (Count 20) and had JP perform fellatio on him (Count 21), these offences occurred between 11 January 1983 and 30 December 1983 when JP was between 11 and 12 years old. This occurred at the offender's house and they are representative counts.

119. One occasion between 8 June 1984 and 26 June 1987, JP and the offender were in the spa together. The offender had given him champagne. The offender lifted JP's body up in the water and performed fellatio on him (Offence 1 on the Form being taken into account on sentencing for Count 22 on the indictment). He also penetrated JP's anus with his penis, saying, "Just relax and it will be easy and feel good." He pushed his penis in and out of JP's anus, and JP felt a great deal of pain. (This is Count 22 on indictment). They got out of the spa, went into the offender's bedroom and lay down on the bed. The offender performed fellatio on JP again (Offence 2 on the Form being taken into account on sentencing for Count 22 on the indictment). He then rubbed cream on his penis and pushed it into JP's anus, and moved it in and out until he ejaculated (Offence 3 on the Form being taken into account on sentencing for Count 22 on the indictment).

120. Between 1984 and 1987, when JP was between 13 and 16 years, sexual contact increased between the offender and JP. The offending was in the offender's bed, or the spa. The offending included kissing, mutual masturbation, fellatio and anal intercourse. The offender would provide JP with alcohol during these times. JP recalled going away with NH and seeing the offender touch NH.

121. In 1988 the offender took 17 year old JP overseas to Singapore, and they shared a hotel room. The offender performed sexual acts with JP multiple times a day, including fellatio, masturbation and anal intercourse. Anal intercourse was always painful for JP, and the offender would vary the depth of his penetration depending on how JP was reacting to the pain. The offender caused JP to anally penetrate him and masturbate him at the same time. There was not much conversation during these activities, JP learned to simply follow the offender's lead.

122. The offender continued sexual contact with JP until he was 20 years old and moved away from the area. He always felt conflicted about the activity, as he loved the offender and did not want anything to interfere with his friendship with him.

123. JP was between 11 and 17 years for the charged offences, which are representative counts. The offender was between 33 and 37 years old.

Count 23 - JB

(78Q - act gross indecency)

124. JB was born 19 February 1974 and was raised in the Kurri area. His father taught him to play the bagpipes from when he was about 5 years old, and they were in the Hunter Celtic Pipe Drum Band. In about 1984, the offender joined the band, playing a drum. The offender had JB's father start to teach him the bagpipes. The family became friends with the offender, and would occasionally drop JB off to stay there. JB recalled that the offender always had the latest gadgets, a large television and stereo system, an MG sports car and a Jaguar, a spa and he would give alcohol to JB. Of an evening they would drink alcohol and loudly play rock and roll music. They watched pornographic movies, during which time the offender spoke in a sexual manner to JB.

125. One weekend when JB was 15 years old, he had been in the spa at the offender's house. After he had gotten out and was drying off, the offender said, "The spa dries out your skin, you need to put some cream on... lie down." JB did so, and the offender began to rub cream on him. The offender opened the towel JB had wrapped around himself and started to massage his genitals. He masturbated JB. After a while JB pushed the offender's hand away. The offender said, "People masturbate all the time, it'll be all right." He wiped away the cream.

126. There were two other occasions where the offender masturbated in front of JB, and touched him on the genitals.

127. Count 23 is a representative count to that extent and occurred between 19 February 1989 and 12 October 1989 when JB was 15 years old, and the offender was 39.

Count 24 - SG

(Section 61E(1) - indecent assault)

128. SG was born 28 September 1972 in the Newcastle area. He was a member of the Hunter Celtic Pipe and Drum Band. Through this activity, SG met JB and became friends with him. In that way he met the offender.

129. One evening the offender had arranged for SG to stay the night to help him with some screen printing. Later during the evening, the offender had provided hashish to SG and the other boys staying there. SG fell asleep on the lounge and woke to find the offender tugging at his pants. The offender opened his trousers, and masturbated SG.

130. This occurred between 28 September 1987 and 28 September 1989 when SG was between 15 and 17 years old, and the offender was 37 to 39 years old.

Count 25 - MW

(Section 78K - Homosexual intercourse with male between 10 and 18 years)

Plus Form 1 with 4 offences (61O aggravated act of indecency person under 16 years x 2, 61M(1) aggravated indecent assault, person under 16 years x 2)

131. MW was born 7 February in Kurri and was raised in that area. His family attended the Baptist Church in Kurri, and the offender would occasionally attend services there. As a result, he was befriended by MW's parents. The offender owned a grocery store at this time, which sold drinks, lollies, hot chips and supermarket items. The offender now lived in a residence attached to the store.

132. The offender would allow MW to serve customers in the store when he was 13 years old, and the offender would give him money for that. MW would talk to the offender about his sexual development. He began to go to the offender's house and talk to him. The offender described male anatomy to him and exposed his genitals to MW and masturbated. (This is Offence 1 on the Form 1 being taken into account on sentencing for Count 25 on the indictment). MW reciprocated and pulled down his own pants. The offender began to touch MW. After a short time, he began to masturbate MW. (This is Offence 2 on the Form 1 being taken into account on sentencing for Count 25 on the indictment). They moved into another room to ensure they would not be discovered and the offender masturbated MW until he ejaculated. (This is Offence 3 on the Form 1 being taken into account on sentencing for Count 25 on the indictment). The offender then masturbated himself in the presence of MW until he also ejaculated. (This is Offence 4 on the Form 1 being taken into account on sentencing for Count 25 on the indictment).

133. These offences occurred between 1 January 1993 and 28 February 1993 when MW was 13 years old.

134. A few days later, MW was given permission to stay the night at the offender's house. The offender played a pornographic video which they both watched. The offender began to masturbate himself until he ejaculated, and watching him, MW began to masturbate himself as well.

135. There were other occasions when the offender would sleep naked in bed with MW and get an erection.

136. The offender bought another spa for his new house. He complained to MW that other boys who came over had been "prudes" and declined to take off their clothes in the spa. The offender got into spa naked, and so did MW.

137. The offender began to perform fellatio on MW, and sucked his penis until he ejaculated. This is Count 25.

138. This offence occurred between 1 January 1993 and 1 June 1995, when MW was between 14 and 16 years old.

139. There were many other occasions when the offender touched and masturbated MW, and had MW masturbate him. While Count 25 is a representative count there were no other episodes of fellatio. Offences against MW continued until he was 17 years old.

Count 26 - DF

(Section 78K - Homosexual intercourse with male between 10 and 18 years)

Plus Form 1 with one offence (Section 61O aggravated act of indecency)

141. DF was born in 1975 in Sydney. In 1991 or 1992, his father took a position as the Baptist Pastor at the Kurri Kurri Baptist Church and the family moved to the area. He had led a very sheltered life as the son of a Pastor.

142. DF and his younger brother PF would mow the offender's lawn for pocket money, and help out in his grocery shop. The offender would go with them to ride the dune buggy at Stockton and go four wheel driving.

143. After a while, DF started to go into the offender's house for a cold drink after the mowing. The offender exposed him to pornographic movies. The offender would give him alcohol, and DF had never done that before; alcohol was not allowed in the house and his parents did not drink.

144. One evening the offender had dinner with DF and gave him some wine. The offender put on a pornographic video and watched it with DF, commenting on what they were watching. The offender exposed his penis, and they both took off their clothes. The offender masturbated himself, and then began to masturbate DF. After a while the offender stopped, and masturbated himself again until he ejaculated. (This is Offence 1 on the Form 1 being taken into account on sentencing for Count 26 on the indictment).

145. There were other offences involving fellatio of DF, and mutual masturbation. This often occurred after the offender had provided DF with wine, and while watching pornographic movies.

146. One evening the offender and DF got into the spa naked, and the offender had brought the television out and was playing a pornographic movie. The offender lifted DF until he was floating and commenced fellatio on him. This continued until DF ejaculated. This is Count 26 on indictment.

147. These offences all occurred between 1 January 1993 and 30 December 1993 when DF was 17 years old, and the offender was 43 to 44.

Count 27 - PF

(Section 61I sexual intercourse without consent)

Plus Form 1 with 1 offence (Section 61O aggravated act of indecency)

148. PF was born 20 July 1977, and is the younger brother of DF.

149. The offender also invited PF in for a cold drink after working in the yard. The F family would often visit the offender for barbeques and dinners. PF described the offender as being part of the family.

150. The offender exposed PF to pornographic videos, and would give him alcohol to drink.

151. On a night in 1992, when PF was 15 the offender introduced PF to masturbation, and this became a frequent thing while watching pornographic movies. Between 1992 and 1995, the offender would also shower together with PF. The sexual incidents escalated to mutual masturbation, fellatio by the offender on PF, and PF on the offender, and anal intercourse. One such offence of mutual masturbation forms the basis for Offence 1 on the Form 1 being taken into account in relation to Count 25 on indictment. The offender told him on one occasion that he was doing him a favour by allowing him sexual release.

152. In January 1993 the offender took PF on a holiday to Queensland, and they shared a hotel room. PF described the offender treating him like a king on this holiday. He also described sexual offences occurring.

153. Between 18 September 1993 and 24 September 1993 PF was doing work experience in Cessnock. One evening during this time, the offender gave PF a large quantity of alcohol and he became heavily intoxicated. Through the night, he woke up to find the offender was having anal intercourse with him. This is Count 27 on the indictment. PF was 16 at the time and in Year 10 at school, and the offender was 43.

154. That was the last offence PF recalls occurring with the offender.

Ground 2

17 The facility for imposing an aggregate sentence does not extinguish the obligation to assess criminality for individual sentences: Section 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999; cf Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. Whilst an indicative sentence recorded in accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act is not in itself amenable to appeal under s 5(1)(c) of the Criminal Appeal Act, an erroneous approach in the indication of the sentence that would have been imposed for an individual offence may well reveal error in the aggregate sentence reached.

18 Counts 13, 18, 22 and 27 each involved anal intercourse of a complainant by the respondent and they were allocated equivalent sentence indications of 5 years' imprisonment. The Crown submits that this result can be demonstrated to reveal an absence of requisite assessment of individual criminality. For this purpose, what was involved in each count should be recapitulated.

19 Count 13 charged buggery of a victim aged about 8 or 9 years. The maximum penalty guide was 14 years' imprisonment. It is well established that the seriousness of an offence of this kind is elevated as the age of the child victim is younger; Shannon v R [2006] NSWCCA 39.

20 Count 18 charged homosexual intercourse (anal penetration) when the complainant was 15 and the respondent 34. The maximum penalty prescription was 10 years' imprisonment. To be taken into account on a Form 1 were three further charges, two offences of homosexual intercourse (fellatio of the victim and causing the victim to anally penetrate the respondent) and indecent assault (masturbating the complainant).

21 His Honour's remarks about this Count, namely:

Count 18 is clearly a charge of real gravity as it involved not only anal intercourse for a period but was done after the complainant had been badly affected by the ingestion of cannabis oil and was not in a position to look after himself. Further, the anal intercourse hurt him a great deal and made him cry. The maximum penalty for this offence is 10 years and this is clearly towards the upper end of the range, for matters of this type. This is particularly so, given the very serious matters on the Form 1.

make it difficult to perceive why, in respect of this count, an identical sentence assessment to other counts was made.

22 Count 22 also alleged homosexual intercourse with the same maximum penalty. There were attached three offences of homosexual intercourse on a Form 1 (fellatio of the complainant on two occasions and one occasion of anal penetration). These offences occurred when the victim was aged between 13 and 16 and the respondent between 33 and 37. It needs to be observed, however, that Count 20, assault with an act of indecency (fellatio of the complainant) and Count 21, committing an act of indecency (causing the victim to fellate the respondent) occurred earlier than those offences when the same victim (JP) was aged 11 and the respondent aged 33.

23 Count 27 charged sexual intercourse without consent, which had a prescribed maximum penalty of 14 years' imprisonment. The conduct involved anal intercourse of the complainant and taken into account on a Form 1 was an offence of an aggravated act of indecency (mutual masturbation). The complainant was aged 16 and the respondent aged 43.

24 In contrast with the equivalence of the indication in respect of these four counts, another count charging buggery (Count 8) was given an indicative term of 4 years, as against a 14 year maximum. Attached to it was a Form 1 requiring taking into account indecent assault (touching of the complainant's penis through his clothing) and committing an act of indecency (fellatio of the respondent). The complainant was aged 15 and the respondent aged 31.

25 It is not possible to deduce from the remarks on sentence a process of reasoning whereby a conclusion can be reached that the factors applicable to sentence assessment in all the counts resulted in the exact indicated assessment of 5 years nor is the difficulty reduced by the reduction of the indication in relation to Count 8.

26 There is substance in the Crown's submission that what seems to have been applied is a "blanket" assessment. Putting to one side for the moment whether 5 years itself (or 4 years) is shown to be inadequate, the variations in the criminality, which are obviously apparent in the elements constituting the crimes for which sentence needed to be assessed, do not lead to a conclusion that individual criminality has been assessed.

27 I would uphold this ground.

Ground 3

28 This ground complains of a specific error when his Honour dealt with Count 19, which was a charge that the respondent assaulted JP and at the time committed an act of indecency upon him contrary to section 81 of the Crimes Act. The offence occurred between January and June 1983 when the complainant was aged 11 and the respondent aged 33. The facts have been already described.

29 In his remarks, his Honour referred to the offence simply as "indecent assault" and expressed the maximum penalty available as 2 years' imprisonment. In fact, as the table which I have set out shows, the maximum penalty was 5 years' imprisonment, a 2 year term being applicable to a charge contrary to s 81A. The source of the error was obviously a misstatement in an annotated indictment supplied by the Crown which mistakenly noted a 2 year term as applicable.

30 Given the relative ages of the respondent and the victim and the misconduct involved, an assessment using a maximum penalty of 2 years as a guide would have been inevitably infected by the error. Upholding this ground does not call for an isolated order affecting Count 19 but the error contributes an element to determination of whether the aggregate sentence was manifestly inadequate and, if so, what re-sentence should be applied.

31 It is convenient to note a response by senior counsel for the respondent in his observation that it could be contended that the assessment in relation to Count 26 was excessive by reason of the failure to advert to the circumstance that, although homosexual intercourse between the respondent and the victim took place in December 1993 when they were aged respectively 43 and 17, and it was then a punishable offence, it had ceased to be so following legislation in 2003. Thus it was contended there was a strong basis for an argument by analogy that sentence for the offence should be mitigated. However, it was candidly and properly conceded that it was not suggested that such an error had impacted in any meaningful way on his Honour's ultimate exercise of sentencing discretion.

32 In fact, in articulating the indicative sentences, a term of 5 years was specified for all of the offences of buggery or homosexual intercourse with a minor, with two exceptions. One of these was Count 26 and the indicative term of 4 years may, although his Honour made no statement about it, be explained by the age factor and the legislative change adverted to by counsel. Count 26 could also, of course, be discriminated on the basis that the intercourse involved fellatio and not anal penetration. The second exception, also attached to a 4 year indicative term, again although not stated, may have reflected his Honour's view about what he described as the momentary penetration which, nevertheless, had caused severe pain.

33 I am unpersuaded that an error of the kind postulated by counsel in regard to Count 26 has been shown to have infected the sentence assessment adversely to the respondent. I add the comment that there were, as above mentioned, five further offences of homosexual intercourse with a minor taken into account on a Form 1 attached to Count 18, which was one of those included in the group to which an indication of 5 years' imprisonment was expressed.

Grounds 1 and 4

34 These grounds can be conveniently dealt with together.

35 His Honour expressly accepted a Crown submission that there should be "partial accumulation". Except that there is no single term of sentence indication larger than 5 years and that the aggregate sentence imposed was 10 years (with a six year non parole period), there is no exposure of how that finding was applied. Of course, in the exercise of power to impose an aggregate sentence, accumulation would in a sense be notional but an examination of the potentials for accumulation can cast light upon whether the aggregate sentence represents a sound exercise of sentencing discretion.

36 Within "groups" of counts for which sentence indication was given (variously 5 years, 4 years, 3 years, 2 years 6 months, 2 years and 1 year) it does not appear that there has been cumulation but the sentence indication for each offence would appear to assume concurrency. Neither does it appear that there has been accumulation in respect of the indicated sentences grouped within each other. I have said "appear" in the absence of any precise expression, one way or another, but I do not overlook that there must have been some application of notional accumulation in order to specify the aggregate sentence of 10 years as compared with the largest indication of 5 years.

37 The issue on these grounds is whether a sentence of 10 years' imprisonment with a non-parole period of 6 years has failed to reflect the totality of the criminality involved and consequently has been shown to be manifestly inadequate.

38 The high level of criminality in the respondent's conduct is not only obvious in the commission of very many serious offences over a very long period of time but in the circumstance, pointed to by the Crown prosecutor, that the respondent constantly found new victims. When he found them, he accompanied his behaviour with the accoutrements of the experienced sexual predator, showing his victims pornographic films and plying them on occasions with alcohol and drugs. One such instance involved giving champagne to an 8 or 9 year old boy.

39 The aggregate sentence imposed by his Honour was manifestly inadequate to reflect the seriousness of the offending over 22 years upon 20 victims. To avoid repetition, I state that that conclusion is not undermined by any subjective factors upon which the respondent might have drawn, which I will refer to in relation to re-sentence.

40 Grounds 1 and 4 should be upheld.

Re-sentence

41 It is not contended that the sentencing judge failed to give account to any favourable matter upon which the respondent could seek to rely in mitigation of sentence.

42 There was some controversy about whether the charges against the respondent of the offences against PD in 1995 had, as his Honour put it, "the effect of stopping him from continuing with his abuse of children". As observed, the respondent has now pleaded guilty to the offences against PD. The respondent's evidence at the hearing in the District Court revealed that he was discharged on committal because PD, whose complaint was being challenged, refused to return to the witness stand and the prosecution for that reason collapsed. Senior counsel for the respondent submitted that the cessation of offending, irrespective of the cause, "takes out the need for specific deterrence". If that were meant literally I would reject the proposition but I accept that it is a factor which would weigh in considering predictions of the risk of future offending. The fact that the respondent ceased offending does not of itself mitigate the seriousness of the crimes that he did commit. The fact that there is a gap of time between last offence and imposition of sentence does not extinguish the need for an element of deterrence.

43 Although the cessation of the prosecution in relation to the complaints of PD terminated as I have recounted, in his evidence the respondent said that his reason for desisting from further offence was the fear of imprisonment. Tendered on behalf of the respondent was a psychiatric report from Dr Bruce Westmore who expressed the opinion that the respondent was not of paedophilic orientation although he said the term hebephilia is sometimes applied to persons of the respondent's sexual orientation, meaning a focus on teenagers rather than prepubescent children. As already noted, however, not all of the victims were teenagers, some were younger than that. It would seem therefore that the respondent's capacity to cease offending showed that, undriven by some uncontrollable psychosexual urges, he engaged in his depredations of the youthful victims purely for his own gratification.

44 The respondent was born on 12 January 1950 and grew up in the Kurri Kurri area. He became active in the local Anglican Church where he assisted in the Youth Group and also at a nearby boys' home. Findings by his Honour which were not challenged included that the respondent had no prior convictions, was not in the high risk of re-offending, had only some belated contrition and remorse but had engaged in some systematic planning and organisation for his offending. As already observed, the offending was facilitated by the use of the commonly used accoutrements of the sexual predator. His Honour took into account the delay in the offences coming to light (save the complaint by PD) the result of which has been some elapse of time between last offending and sentence. The pleas of guilty were appropriately recognised and taken into account.

45 No complaint is made about the use made by his Honour of the content of the Victim Impact Statements in that the Crown did not challenge his finding that he was not satisfied beyond reasonable doubt that damage to victims was substantial. The basis of the finding was stated to be the unsworn and untested nature of the content of the statements. Although the finding was not challenged, that does not mean that the effects on the multiple victims are to be ignored. Statements were received from 11 victims and his Honour's comments were:

It is quite clear from these sometimes eloquent and all heartfelt statements, that the criminal actions of this offender, although ranging from 1974 and ending in 1995, have continued to affect these young men. Throughout there is the betrayal of trust, deeply ingrained feelings of disgust and low self-esteem and constant difficulties in managing personal and family relationships. Some of the victims were not believed by their parents. Others turned to alcohol, drugs and even serious crime. Many felt the need to be over vigilant with their own families and reading them exemplifies why the law treats sexual assault against children so seriously.

46 It does not require proof of the content of the statements of victims beyond reasonable doubt to conclude that, on any view, the respondent would have left in the wake of his crimes, a trail of wreckage constituted by the harm and damage to his many victims.

47 His Honour was alert to what is conventionally described as the historical nature of the offences which requires taking into account established sentencing pattern applicable at the time of offending: AJB v The Queen [2007] NSWCCA 51; (2007) 169 A Crim R 32. The same will apply to any re-sentence. For the reasons which his Honour recorded, I would, if re-sentencing, also divide any total term so that the proportion of non-parole period is equivalent to 60 per cent of that total.

48 The Crown has submitted that an adequate sentence reflecting all factors would be a head sentence of at least 20 years. Application of the same proportion as that chosen by his Honour to such a term would result in a non-parole period of 12 years. In apparent anticipation of that possible outcome, the respondent relied upon the affidavit of Ms Rostron, solicitor, in which she deposed that inquiries had revealed that should the respondent's non-parole period be 12 years or greater, he would be classified as a serious offender and held in a maximum security prison. He is presently classified B and held in medium security. In response to further inquiries made by the Crown, correspondence was exhibited to the affidavit of Ms Winston. That correspondence is expressed to be clarification of information provided to Ms Rostron. I extract therefrom:

It should be noted that after his appeal, should his sentence vary, his classification will be determined by a manager, classification and placement, and the Serious Offenders Review Council will be informed should it be 12 years or greater.

The Serious Offenders Review Council provides advice to the Commissioner on a serious offender's classification, placement and case plan. It is the Commissioner who determines the outcome. The previous Commissioner of Corrective Services NSW developed guidelines for progression in classification for serious offenders. These were guidelines only and the former Commissioner at times progressed serious offenders outside these guidelines. At this time it is not known if the newly appointed Commissioner of Corrective Services will maintain these guidelines. It is noted under the Crimes (Administration of Sentences) Act 1999 and Regulation 2008 there is no restrictions [sic] in terms of time left to serve for progression in classification.

49 On the information provided, I am unable to conclude that it has been shown that, if a non-parole period of 12 years or more is the outcome of re-sentence, the respondent would probably be confined in harsher circumstances so as to attract mitigation of sentence on that account.

50 The aggregate sentence imposed in the District Court significantly failed to reflect the seriousness of the respondent's multiple offences against many victims over a very long period of time. Neither did it adequately reflect the circumstances in which the crimes were committed in particular in the constant acquisition of new victims, the exposure of young people at impressionable ages to pornographic material and, from time to time, plying them with alcohol and drugs all to enable the respondent to experience forms of sexual gratification.

51 I recognise that in assessing re-sentence it is necessary to apply the considerations above mentioned which require regard when offences of an historical nature are in focus. Nevertheless in my view in the whole of the circumstances, and acknowledging the restraint which attaches to re-sentence after a successful Crown appeal, I would assess an appropriate sentence to be a non-parole period of 12 years with a balance of term of 8 years. It is appropriate to make orders only in respect of the aggregate sentence. This is consistent with the faculty granted by s 53A and, it can be mentioned, the intention expressed when the provision was being legislated in the second reading speech where it was observed that it would as a result of the amendment "make it easier to adjust an overall sentence when one sentence is changed on appeal."

52 I would make the following orders:

1) Crown appeal allowed.

2) Sentence imposed in the District Court quashed.

3) In lieu thereof, the respondent sentenced to an aggregate term of imprisonment consisting of a non-parole period of 12 years commencing on 24 November 2011 and expiring on 23 November 2023 together with a balance term of 8 years commencing on 24 November 2023.

4) The earliest date of eligibility for parole specified as 23 November 2023.

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Decision last updated: 20 September 2012