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District Court 11 August 2017

R v COLLINS, John

[2017] NSWDC 281

Sexual offences
CRIMINAL SENTENCE INDECENT ASSAULT BUGGERY POSSESS CHILD ABUSE MATERIAL 60 YEARS OLD

Citation: R v Collins [2017] NSWDC 281
Court: District Court of New South Wales
Date: 11 August 2017
Judge: Judge S Norrish QC

Background

The offender, a man aged 60 at the time of sentencing, appeared before the District Court for sentence on a series of sexual offences committed in 1979 to 1981 against a young male victim who was approximately nine to eleven years old at the time. The offences included indecent assault and buggery (the historical term for anal intercourse without consent), with four further offences of a similar character listed on a Form 1 to be taken into account on sentence. The victim had a connection to the offender through a junior rugby union club in Sydney.

A separate and more recent offence was also before the Court: the possession of child abuse material, committed between May and October 2016 while the offender was on bail awaiting sentence for the historical matters. Notably, some of this conduct occurred during the precise period when the Court was actively considering whether to revoke the offender's bail.

The offender pleaded guilty to all matters. He did not give evidence at the sentence proceedings. There was a partially disputed statement of facts, with the dispute centring not on the nature of the offending itself but on the character of the relationship between the offender and the victim, specifically whether the offender had been the victim's coach and therefore occupied a position of trust or authority.

  • Whether the offender held a position of trust or authority over the victim at the time of the historical offences, and what weight that should carry in sentencing
  • How to apply the current sentencing framework, including s 21A of the Crimes (Sentencing Procedure) Act 1999, to offences committed before that provision existed
  • What sentencing standards applied to the historical offence of buggery, having regard to sentences imposed at the time
  • How to assess the utilitarian value of the guilty pleas
  • The relevance of the offender's diagnosed paedophilic disorder as a mental health condition connected to the offending, including its effect on specific and general deterrence
  • How to structure the sentences to reflect totality and whether special circumstances justified a different ratio of non-parole period to total sentence
  • The aggravating effect of committing the child abuse material offence while on bail

Decision

Judge Norrish accepted that while the offender and victim knew each other through the Clovelly Rugby Union Club, the evidence did not establish beyond reasonable doubt that the offender occupied a formal position of authority over the victim or was in breach of a relationship of trust at the relevant times. The Court acknowledged that modern provisions would have allowed such circumstances to be pleaded as aggravating elements, but found that the evidence available did not support that conclusion on the facts of this case.

In sentencing for the historical offences, the Court applied the principle that an offender must be sentenced according to the standards in place at the time of the offending. This required a historical survey of how courts dealt with buggery offences in the relevant era. The Court applied s 21A of the Crimes (Sentencing Procedure) Act 1999 to the historical conduct, as required by law, while recognising that some currently recognised aggravating features did not exist as formal statutory elements when the offences occurred.

The offender's diagnosed paedophilic disorder was treated as a mental health condition connected to the offending. The Court considered this under the framework established in cases such as R v Engert, acknowledging that while the condition bears on culpability, it also informs the need for specific and general deterrence given the risk it poses. The Court found the offender had shown little genuine contrition and assessed him as a high risk of re-offending.

The possession of child abuse material committed on bail was treated as a serious aggravating matter, given that it occurred during the very period when the Court had extended leniency to allow the offender to make arrangements for a family member. The Court applied the Interpol Baseline Classification System when assessing the nature of the material. A finding of special circumstances was made, justified by the partial accumulation of sentences and the need for an extended period of supervision on release.

Orders Made

  • Count 1 (indecent assault): sentenced to a term of imprisonment, with a non-parole period declining to be separately fixed by reason of other sentences imposed
  • Possess child abuse material: sentenced to a term of imprisonment (specific length not reproduced in the provided text)
  • Indecent assault on indictment: 1 year and 3 months imprisonment, commencing 14 December 2018, expiring 13 March 2020 (no separate non-parole period fixed)
  • Count 2 (buggery, with Form 1 matters taken into account): 2 years and 9 months non-parole period commencing 14 June 2019, expiring 13 March 2022; balance of sentence 2 years and 9 months, expiring 13 December 2024
  • Total sentence: 8 years and 2 months imprisonment
  • Effective non-parole period: 5 years and 3 months (earliest eligibility for parole: 13 March 2022)
  • Special circumstances found in relation to count 2
  • The offender was required to be registered under the Child Protection (Offenders Registration) Act 2000

Key Takeaways

  • A sentencing court must apply the sentencing standards that prevailed at the time historical offences were committed, even where modern legislation would support harsher treatment of equivalent conduct.
  • Section 21A of the Crimes (Sentencing Procedure) Act 1999 applies to historical offending, but the Court must take care to recognise that some aggravating features now codified in that provision could not have been formally pleaded as elements of offences at the time they occurred.
  • Where a position of trust or authority is in dispute, the sentencing court must be satisfied of the relevant facts to the appropriate standard before treating such a relationship as aggravating, even where the general circumstances suggest proximity between offender and victim.
  • A diagnosis of paedophilic disorder as a mental health condition connected to offending engages the principles in R v Engert, requiring the court to weigh reduced moral culpability against the ongoing need for deterrence and community protection, particularly where the risk of re-offending is assessed as high.
  • Offending committed while on bail, particularly during a period when a court has actively extended leniency, is treated as a serious aggravating factor warranting significant weight in the overall sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 79, 80, 81, 81A, 91A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- R v Anning [2014] NSWDC 359
- Attorney-General's Application (No 1) of 2002 (2002) 56 NSWLR 147
- Barrett (NSWCCA, 3 March 1997, unreported)
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Jacobs [2011] NSWDC 34
- McIntosh v R [2015] NSWCCA 184
- Mill v R (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- R v Brown [2012] NSWCCA 199
- R v Denham [2015] NSWDC 21
- R v Engert (1995) 84 A Crim R 67
- R v Fox [2011] NSWDC 250
- R v NJR [2002] NSWCCA 129
- R v Roberts [2003] NSWCCA 309
- Regina v Barry [2001] NSWCCA 304
- Regina v McIntosh [2011] NSWDC 160
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Veen v R (No 2) [1988] HCA 14