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District Court 12 December 2014

R v Alan James Pollock

[2014] NSWDC 236

Sexual offences

Citation: R v Alan James Pollock [2014] NSWDC 236
Court: District Court of New South Wales
Date: 12 December 2014
Judge: Mahony SC DCJ

Background

The offender was a man who had contact with school-age children both as a relief teacher at a Catholic primary school and through involvement in coaching and community activities at a Catholic secondary school in western Sydney. The offending occurred across two distinct periods: the early 1980s and the mid-to-late 1980s. Victims were boys and girls aged between nine and approximately sixteen years old.

The offender faced two separate indictments. During a trial before Mahony SC DCJ in June 2014, he pleaded guilty mid-proceedings to four counts on the first indictment, including an attempted indecent assault and three offences involving a male victim that escalated to sexual intercourse. In September 2014, before a different judge, he pleaded guilty to a further five counts on a second indictment involving four female and one male primary school-aged victims, all offences committed while he was a relief teacher. Two additional charges were dealt with on a Form 1 (meaning they were taken into account at sentencing without a separate conviction).

At the time of sentence, the offender had been in custody for approximately three months and twelve days, having been arrested in November 2012.

  • How the nine separate guilty plea counts across two indictments should be sentenced, including the application of the aggregate sentencing regime under section 53A of the Crimes (Sentencing Procedure) Act 1999
  • Whether special circumstances existed under section 44(2) of the same Act, justifying a departure from the standard ratio between the non-parole period and the total head sentence
  • How the principles in Pearce v The Queen (1998) 194 CLR 610, requiring each offence to receive an appropriate sentence, applied within an aggregate sentencing structure
  • The appropriate weight to give to subjective factors, including the guilty pleas entered at different stages, the offender's age, and any other relevant personal circumstances

Decision

Mahony SC DCJ sentenced the offender on all nine counts across both indictments. The judge set out indicative sentences for each count individually before imposing a single aggregate term under section 53A of the Crimes (Sentencing Procedure) Act. The aggregate sentencing provision allows a court to impose one overall term of imprisonment across multiple offences rather than a series of individually accumulated terms.

For the most serious count, sexual intercourse with a person under 16 (Count 7 on the first indictment), the indicative sentence was 4 years and 9 months imprisonment. The remaining counts on both indictments attracted indicative sentences ranging from 6 to 9 months each, reflecting their relative seriousness within the overall pattern of offending.

The court found that special circumstances existed under section 44(2), which permits departure from the standard position that the non-parole period (the minimum time served before parole eligibility) should be approximately three-quarters of the total sentence. The finding of special circumstances was used to increase the proportion of the sentence spent on parole supervision, recognising the offender's need for rehabilitation and reintegration support following a lengthy period of incarceration.

The aggregate head sentence was fixed at 8 years, commencing 1 September 2014. The non-parole period was fixed at 5 years, with the balance of 3 years to be served on parole.

Orders Made

  • The offender was convicted of Counts 4 to 7 on the first indictment and Counts 1 to 5 on the second indictment.
  • An aggregate term of imprisonment of 8 years was imposed under section 53A of the Crimes (Sentencing Procedure) Act.
  • An aggregate non-parole period of 5 years was fixed, commencing 1 September 2014 and expiring 31 August 2019.
  • The balance of the aggregate term of 3 years was fixed to commence 1 September 2019 and expire 31 August 2022.
  • The parole eligibility date was set at 31 August 2019.
  • The two Form 1 offences (relating to victims ME and RW) were certified as taken into account.
  • The suppression order on the offender's name, previously made under section 7 of the Court Suppression and Non-Publication Orders Act 2010, was lifted.

Key Takeaways

  • The District Court applied the aggregate sentencing regime under section 53A of the Crimes (Sentencing Procedure) Act, demonstrating how a court can impose a single coherent term across multiple offences on separate indictments while still recording individual indicative sentences consistent with Pearce v The Queen.
  • Indicative sentences in an aggregate structure serve to show that each offence has been individually assessed, preserving the Pearce principle even where no individual sentences are formally imposed or accumulated.
  • A finding of special circumstances under section 44(2) permits the court to depart from the standard non-parole to head sentence ratio, allowing a longer parole period where the circumstances of the offender or the offending warrant increased post-release supervision.
  • Form 1 offences, while not resulting in additional convictions, are formally certified as having been taken into account and may increase the overall sentence imposed for the principal offence to which they attach.
  • The lifting of the suppression order at the time of sentence illustrates that such orders can be made and maintained through proceedings and then dissolved at the court's discretion once the reason for suppression no longer applies.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1A), 61E(1), 61E(1A), 61E(2A), 81
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 53A
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- Cahadi v The Queen (2007) 168 A Crim R 41
- Simpson v R [2014] NSWCCA 23
- MBP v R [2013] NSWCCA 213
- R v Rae [2013] NSWCCA 9
- R v Ryan (2001) 206 CLR 287
- Einfeld v R [2002] NSWCCA 87
- R v ABS [2005] NSWCCA 255
- R v Boulad [2005] NSWCCA 289
- R v Gittany (No 5) [2014] NSWSC 49
- Holyoak v R (1995) 82 A Crim R 502
- R v Burchell (1987) 34 A Crim R 148
- R v Fisher (1989) 40 A Crim R 442
- R v Harmata [2013] NSWDC 214
- R v Dent (NSWCCA, 24 March 1991, unreported)
- R v Levi (NSWCCA, 15 May 1997, unreported)