Citation: R v McPhillamy, Richard [2015] NSWDC 423
Court: District Court of New South Wales
Date: 8 May 2015
Judge: King DCJ
Background
The offender was an acolyte at a cathedral in Bathurst who assisted at Saturday evening Mass services in late 1995 and early 1996. He was convicted by jury of six offences against an 11-year-old altar boy who was under his direct supervision at the church. The offences occurred on two separate occasions within a five-month window, both times in a toilet near the cathedral's entrance foyer.
On the first occasion, the offender masturbated himself in front of the child, encouraged the child to do the same, and then touched the child's hand and penis to demonstrate masturbation. On the second occasion, the conduct escalated: the offender again masturbated the child, then performed fellatio on him, and compelled the child to perform fellatio on the offender in return. The child gagged and cried before the offender stopped.
The victim made no complaint until approximately March 2009, when he approached the Catholic Church's Professional Standards Office. He provided written statements to police in November 2012 and February 2013, and the offender was arrested and charged in May 2013. A jury found the offender guilty on all six counts on 13 February 2015.
Legal Issues
- What sentence was appropriate for six historical child sexual offences committed against a pre-pubescent child in a position of authority?
- How should the court treat the statutory aggravating circumstance of breach of trust where that element was already captured within the terms of specific charges?
- What weight should be given to the significant delay between the commission of the offences (1995 to 1996) and the sentencing (2015)?
- Whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the balance of sentence.
Decision
King DCJ found that each of the six offences was objectively serious having regard to the maximum penalties applicable and the nature of the acts involved. The offending was characterised as a course of continuing conduct rather than isolated incidents, escalating from acts of masturbation on the first occasion to fellatio on the second. The victim was a pre-pubescent child with no sexual experience, and the offender plainly knew this.
The court treated the breach of trust as an aggravating factor only in relation to counts where it was not already an element of the charge. For Counts 1, 3, 5, and 6, the victim's position of being under the offender's authority was captured within the charge itself and could not be double-counted. For Counts 2 and 4, the aggravation could properly be reflected in sentence.
On the question of delay, the court applied established principles recognising that a lengthy gap between offending and sentencing is a relevant mitigating consideration, particularly where the offences predate the standard non-parole period regime introduced in February 2003. The sentencing regime applicable at the time of the offences was taken into account. The court also noted the likely ongoing psychological harm to the victim as falling within the expected range of impacts for offences of this nature, without specific evidence being required.
King DCJ found special circumstances warranting a reduction in the non-parole period by six months. Two reasons justified this: the need for a longer period of post-release supervision given the nature of the offending, and the requirement to more accurately reflect the sentencing regime that would have applied had the offences been dealt with closer to the time of their commission. The court applied the principle of totality in setting an aggregate sentence rather than imposing and accumulating individual terms.
Orders Made
- The offender was sentenced to a total term of imprisonment of six years.
- A non-parole period of four years was set, commencing 13 February 2015.
- First eligibility for parole: 12 February 2019.
- Parole period of two years, expiring 12 February 2021.
Key Takeaways
- The District Court confirmed that where a statutory aggravating circumstance (such as the victim being under the offender's authority) is already an element of a particular charge, it cannot be separately counted as a further aggravating factor at sentence in respect of that charge.
- A course of escalating sexual offending against the same child victim across two occasions supports a characterisation of continuing conduct rather than isolated incidents, which is relevant to the assessment of objective seriousness.
- Under the sentencing principles applicable to pre-2003 historical offences, courts take into account the absence of a standard non-parole period and seek to reflect the sentencing regime that would have applied closer to the time of offending.
- Significant delay between the commission of offences and sentencing operates as a mitigating consideration, consistent with the principles in cases such as R v Dodd and Mill v R.
- Special circumstances can be established by the combination of a perceived need for extended post-release supervision and the requirement to reflect an earlier, less punitive sentencing regime, permitting a reduction in the non-parole period below the statutory default ratio.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Dodd (1991) 57 A Crim R 549
- Ibbs v The Queen [1987] 163 CLR 447
- Mill v R [1988] HCA 70
- R v Allpass (1994) 72 A Crim R 561
- R v Burchell (1987) 34 A Crim R 148
- R v Dennis (unreported, NSWCCA, 14 December 1992)
- R v Gebrail (unreported, NSWCCA, 18 November 1994)
- R v Hibberd [2009] NSWCCA 20
- R v Jarrold [2010] NSWCCA 69
- R v KRC [2000] NSWCCA 541
- R v MJR (2002) 54 NSWLR 368
- R v Moon (2000) 117 A Crim R 497
- R v Shore (1992) 66 A Crim R 37
- Thorp v R [2010] NSWCCA 261
- Veen v The Queen (1979) 143 CLR 458
- Wu v R [2011] NSWCCA 102