Citation: Regina v Andrew Dean McIntosh [2011] NSWDC 160
Court: District Court of New South Wales
Date: 22 August 2011
Judge(s): Michael Finnane QC DCJ
Background
The offender, aged 53 at the time of sentencing, appeared before the District Court for sentencing following two separate trials before the same judge. The first trial concerned offences committed at Barker College between April 1991 and January 1992, resulting in conviction on 24 counts including aggravated indecent assault, homosexual intercourse with a male aged between 10 and under 18 years, gross indecency, and assault occasioning actual bodily harm. The second trial concerned earlier offences committed in Inverell between November 1977 and March 1983, resulting in conviction on 18 counts including six counts of buggery, eight counts of indecent assault, and four counts of common assault.
These proceedings followed an earlier conviction in 1988 in the Supreme Court, where the offender had been sentenced for child sexual offences committed in Grafton in 1985 and 1986. After serving a non-parole period of less than two years, he was released on parole and committed the Barker College offences while still on parole. The offending across all three periods involved similar conduct: the offender insinuated himself into the lives of boys and their families, gave gifts, built trust, and then sexually assaulted his victims.
The victims across the Inverell offences were three boys, referred to as M, S, and P, whose identities are subject to a non-publication order. The offending against them included buggery and various forms of indecent assault, carried out over a period spanning several years during the late 1970s and early 1980s.
Legal Issues
- What sentences were appropriate for the offences arising from each of the two trials, having regard to the objective seriousness of the conduct and the offender's extensive criminal history?
- How should the court apply the totality principle (the requirement that the overall sentence reflect the total criminality without being crushing) across a large number of historical offences spanning multiple periods?
- What weight should be given to the offender's prospects of rehabilitation, his lack of remorse, and his continuing danger to the community?
- What relevance did comparable sentencing decisions have to the appropriate range of sentences for these historical offences?
Decision
The District Court characterised the offender as a persistent and dangerous paedophile who had demonstrated, through his conduct over more than two decades, no genuine intention to rehabilitate. The court noted that his 1988 sentencing had proceeded on the basis that rehabilitation was likely, but his reoffending while on parole immediately undermined that assessment. His continued denial of all offending, rejected by two juries, further confirmed in the court's view that he presented an ongoing danger to the community.
The court undertook a detailed review of comparable sentencing decisions for historical child sexual offences, including cases involving buggery and indecent assault committed against boys. This review was necessary because the offences predated significant legislative changes, and the maximum penalties applicable were those in force at the time of the offending. The court considered cases from the Court of Criminal Appeal spanning the 1970s through to 2011 to identify an appropriate sentencing range.
The court found significant aggravating features throughout the offending: the offender held positions of trust in relation to each victim, he used grooming tactics systematically, he inflicted physical pain as part of his conduct, he made threats to ensure silence, and the offending was sustained and repeated across multiple victims over many years. The absence of any remorse and the offender's continued assertion of innocence after two jury convictions were treated as indicating that the prospects of rehabilitation were negligible.
The court was also required to apply the principle from Veen v R (No 2) that a sentence must be proportionate to the offence, while the offender's criminal history remained relevant to the assessment of the protection of the community. The court balanced these considerations, along with the totality principle, in arriving at sentences across the two sets of offences.
Orders Made
• Clarke: 15 years imprisonment, non-parole period 8 years
• Cathro: 11 years imprisonment, non-parole period 5 years
• Murray: 4 years 6 months imprisonment, non-parole period 20 months
Key Takeaways
- A history of persistent child sexual offending spanning multiple decades, combined with a demonstrated pattern of reoffending immediately upon release, is highly relevant to assessing both the objective seriousness of current offences and the need to protect the community.
- Under Veen v R (No 2), proportionality remains the primary constraint on sentencing, but an offender's prior criminal history may properly inform the weight given to community protection, particularly where rehabilitation prospects are assessed as negligible.
- Where an offender maintains a complete denial of guilt following conviction by a jury on multiple counts, across multiple trials, the absence of remorse is a legitimate factor weighing against a finding of prospects for rehabilitation.
- Historical sexual offences against children must be sentenced by reference to the maximum penalties applicable at the time of the offending, requiring careful examination of comparable decisions from the relevant era.
- Systematic grooming conduct, including the deliberate cultivation of trust with victims' families to gain access to children, constitutes a significant aggravating feature in the sentencing of child sexual offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
Cases:
- Veen v R (No 2) (1988) 164 CLR 465
- PWB v R [2011] NSWCCA 84
- A.J.B. v R [2007] NSWCCA 51
- R v Bruce Roberts [2003] NSWCCA 309
- R v Maxwell Raymond Barry [2001] NSWCCA 304
- R v Peter Harold Joseph Pritchard [1999] NSWCCA 182
- R v Colin John Fisk [1998] NSWCCA
- R v Peter Edward Barrett [1997] NSWCCA
- R v Andrew Dean McIntosh [1988] SC (Supreme Court, 5 August 1988)
- R v Phillip George Thow [1985] NSWCCA
- R v Michael John Hill [1979] NSWCCA
- R v David John Miller [1977] NSWCCA
- R v Raymond John Davy [1975] NSWCCA
- R v Barry Richard Clarke and Kim Coulson Cathro [1975] NSWCCA
- R v William James Murray [1974] NSWCCA