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2
District Court 24 November 2011

R v Fox

[2011] NSWDC 250

Sexual offences
CRIMINAL SENTENCE FORMS 1 BUGGERY INDECENT ASSAULT INCITE ACT OF INDECENCY

Citation: R v Fox [2011] NSWDC 250
Court: District Court of New South Wales
Date: 24 November 2011
Judge: King SC DCJ

Background

The offender, a businessman aged between 36 and 41 at the time, faced sentencing on seven counts of prohibited sexual offences against three male child victims. The offences occurred between 31 December 1979 and 1 January 1985 at locations in the Sydney metropolitan area, including the offender's private residences and on harbour cruisers. The offender accessed each victim through associates who acted as paedophile procurers, having targeted and groomed vulnerable young boys to be compliant with adult male sexual contact.

The three victims were very young at the time of the offences. One was aged 13 to 15, another was aged 10 to 11, and the third was aged 9 to 12. The offending included buggery (anal intercourse), indecent assault, committing acts of indecency, and inciting acts of indecency. Additional offences were placed on a Form 1 to be taken into account when sentencing on three of the counts.

The offender was arrested in June 2010 and initially faced 31 charges. Following a contested procedural history involving Crown non-compliance with case conferencing obligations, the indictment was narrowed to 21 counts, and the offender ultimately pleaded guilty to the seven counts the subject of sentencing.

  • What discount, if any, was available for the guilty plea given the procedural history, including the Crown's failure to comply with obligations under the Criminal Case Conferencing Trial Act 2008?
  • How should the sentencing court approach historic sexual offences involving child victims, including the application of the law as it stood at the time of offending?
  • What weight should be given to victim impact statements, the offender's personal circumstances, and his prospects of rehabilitation?
  • How should the principle of totality be applied across seven counts, including Form 1 matters, to produce an appropriate overall sentence?
  • Whether special circumstances existed to justify a variation from the standard non-parole period ratio.

Decision

The court gave detailed consideration to the discount for what is commonly called "utilitarian value" (the practical benefit to the justice system and victims from a guilty plea). The Crown's persistent failure to comply with case conferencing obligations under the Criminal Case Conferencing Trial Act 2008 complicated this assessment. The court found that the offender had been ready to participate in the conferencing process throughout, and that the Crown's non-compliance had caused significant delay and additional cost. The court weighed this in the offender's favour when assessing the extent of the utilitarian discount.

The court applied the law as it existed at the time of each offence, which meant different maximum penalties applied to different counts. For buggery (Counts 1 to 4), the maximum was 14 years penal servitude. For the indecency offences involving the third victim, the maximums ranged from two to six years. The court examined each offence individually before considering the overall sentence structure.

The court accepted that the offender showed remorse and had no prior or subsequent offending history of a similar nature. Favourable evidence as to character and rehabilitation prospects was taken into account, as were the victim impact statements, which the court treated as significant indicators of the serious and lasting harm caused to each victim. The court was satisfied that special circumstances existed within the meaning of the Crimes (Sentencing Procedure) Act 1999, justifying a departure from the standard ratio between the non-parole period and the total term, to allow for adequate supervision on parole.

Applying the totality principle, the court structured the sentences to run cumulatively but with partial concurrency, producing an overall effective sentence of nine years with a non-parole period of four and a half years.

Orders Made

  • Count 7 (indecent assault on AS): fixed term of imprisonment, specific dates set.
  • Count 6 (incite AS to act of indecency, with Form 1 offence taken into account): fixed term, commencing six months after Count 7.
  • Count 5 (assault and commit act of indecency on AS, with Form 1 offence taken into account): one year fixed term, commencing 29 January 2012, expiring 28 January 2013.
  • Count 1 (buggery of PH): 18 months fixed term, commencing 29 July 2012, expiring 28 January 2014.
  • Count 2 (buggery of PH): 18 months fixed term, commencing 29 January 2013, expiring 28 July 2014.
  • Count 3 (buggery of SM): 18 months fixed term, commencing 29 July 2013, expiring 28 January 2015.
  • Count 4 (buggery of SM, with Form 1 indecent assault taken into account): total term of 6 years and 3 months, with a non-parole period of 1 year and 9 months commencing 29 January 2014 and expiring 28 October 2015; balance of term of 4 years and 6 months expiring 28 April 2020.
  • Overall accumulated non-parole period: 4.5 years from 29 April 2011; total accumulated sentence: 9 years.
  • First eligible for parole: 28 October 2015.
  • Recommendation that upon release on parole, the offender be subject to supervision by the Probation and Parole Service, with particular attention to sexual offending counselling and treatment.

Key Takeaways

  • A Crown's failure to comply with obligations under the Criminal Case Conferencing Trial Act 2008 can be a relevant factor in assessing the utilitarian discount available to an offender who was ready and willing to participate in the conferencing process.
  • Historic sexual offences against children are sentenced according to the law as it stood at the time of the offending, including the maximum penalties then in force, even where the matter comes before the court decades later.
  • Where multiple counts span different victims, different periods, and different statutory provisions, the sentencing court must balance individual assessment of each offence against the totality principle to ensure the overall sentence is just and not crushing.
  • Victim impact statements played a material role in the court's assessment of the gravity of the offending, reflecting the lasting harm to each of the three victims.
  • Special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999 were established on the facts, producing a non-parole period equal to 50% of the total term, with a recommendation for intensive parole supervision focused on sexual offending treatment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 79, 81, 61E(1), 61E(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2), 32
- Criminal Case Conferencing Trial Act 2008 (NSW), s 6(1), (5), (12)

Cases:
- AB v The Queen (1999) 198 CLR 111
- Clinton v The Queen [2009] NSWCCA 276
- Featherstone v The Queen [2008] NSWCCA 71
- R v Borkowski [2009] NSWCCA 102
- R v Dib [2003] NSWCCA 117
- R v JCW (2000) 112 A Crim R 466
- R v MJR (2002) 54 NSWLR 368
- R v Moon (2000) 117 A Crim R 497
- R v Palu (2002) 134 A Crim R 174
- R v S [2000] NSWCCA 13
- R v Shore (1992) 66 A Crim R 37
- R v SY & Anor [2003] NSWCCA 291
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Totten [2003] NSWCCA 207