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District Court 23 March 2011

R v Jacobs

[2011] NSWDC 34

Sexual offences
CRIMINAL SENTENCE INDECENT ASSAULT AND BUGGERY SS 81 AND 79 MULTIPLE MALE VICTIMS UNDER AUTHORITY

Citation: R v Jacobs [2011] NSWDC 34
Court: District Court of New South Wales
Date: 23 March 2011
Judge: A.F. Garling DCJ

Background

The offender was an adult leader in a Church of England Boys Society group who used that position of authority to gain the trust of multiple families over several years in the late 1970s and early 1980s. The victims were boys aged approximately ten to fourteen years at the time of the offending. The offender cultivated close relationships with the victims' families, acting as a babysitter, attending camps, and assisting with homework, before committing sexual offences against the boys.

The offender faced eleven charges arising from offending against five male victims between approximately 1977 and 1983. The charges included nine counts of indecent assault under section 81 of the Crimes Act 1900 and three counts of buggery under section 79 of the same Act. The offender pleaded guilty to all eleven charges.

The sentencing proceedings required the court to apply the law as it stood at the time of the offences, given that the conduct occurred decades before the prosecution was brought.

  • What sentences were appropriate for multiple historical sexual offences committed against children by a person in a position of authority?
  • How should the totality principle be applied to ensure that cumulative sentences were not disproportionate to the overall criminality, while still reflecting the seriousness of each offence?
  • What weight should be given to the guilty plea, the offender's age and health at sentencing, and the existence of special circumstances in structuring non-parole periods?

Decision

Garling DCJ noted that the offending was serious, systematic, and committed by a person who deliberately placed himself in a position of trust to access child victims. The use of the boys' society, the cultivation of family trust, and the repeated nature of the conduct were all significant aggravating features. Several offences were representative counts, meaning the agreed facts established they occurred on numerous occasions rather than as single incidents.

The court applied the principle from R v MJR and related authorities that sentences for historical offences must reflect the maximum penalties available at the time the offences were committed. The maximum penalty for indecent assault under section 81 was five years imprisonment, and for buggery under section 79 it was fourteen years. The court worked through each charge individually before considering the aggregate effect.

Applying the totality principle, the court structured the sentences so that they ran cumulatively but adjusted individual non-parole periods to produce an aggregate term proportionate to the overall offending. The court found special circumstances, which permitted a departure from the standard ratio between non-parole period and total sentence, allowing for a longer parole period to facilitate rehabilitation and supervision on release.

The offender was sentenced to an aggregate regime with a first eligible parole date of 3 September 2016.

Orders Made

  • Charge 1: imprisonment with a non-parole period of 1 year and 2 months, total term of 2 years, commencing 4 March 2011.
  • Charges 2 and 3 (concurrent): non-parole period of 1 year and 2 months, total term of 2 years, commencing 4 September 2011.
  • Charge 4: non-parole period of 1 year and 2 months, total term of 2 years, commencing 4 September 2012.
  • Charge 5: non-parole period of 3 years and 7 months, total term of 6 years, commencing 4 September 2012.
  • Charge 6: non-parole period of 1 year and 2 months, total term of 2 years, commencing 4 March 2013.
  • Charge 7: non-parole period of 1 year and 6 months, total term of 2 years and 6 months, commencing 4 March 2013.
  • Charge 8: non-parole period of 1 year and 2 months, total term of 2 years, commencing 4 September 2013.
  • Charge 9: non-parole period of 2 years and 6 months, total term of 5 years, commencing 4 March 2014.
  • Charge 10: non-parole period of 1 year and 6 months, total term of 2 years and 6 months, commencing 4 March 2014.
  • Charge 11: non-parole period of 1 year and 6 months, total term of 5 years, commencing 4 March 2015.
  • First eligible parole date: 3 September 2016.
  • Special circumstances found.

Key Takeaways

  • Historical sexual offences are sentenced by reference to the maximum penalties that applied at the time of the conduct, not those in force at the date of sentencing.
  • Deliberate exploitation of a position of trust, such as a youth group leadership role, to access child victims is a significant aggravating factor in sentencing for child sexual offences.
  • Under the totality principle, where multiple cumulative sentences are imposed, a court may adjust individual non-parole periods downward to ensure the aggregate term remains proportionate to the overall criminality.
  • A finding of special circumstances permits the court to extend the parole period beyond the standard statutory proportion, which is relevant where rehabilitation and post-release supervision are significant considerations.
  • Representative counts, covering conduct that occurred repeatedly rather than as a single incident, can reflect a greater degree of criminality than the face of a single charge might suggest, and the agreed facts underlying such counts inform the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 79 (buggery; maximum 14 years imprisonment)
- Crimes Act 1900 (NSW), s 81 (indecent assault; maximum 5 years imprisonment)

Cases
- R v MJR (2002) 54 NSWLR 368
- R v Moon (2000) 117 A Crim R 497
- R v Featherstone [2008] NSWCCA 71