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District Court 16 March 2018

R v LEE, Ernest John

[2018] NSWDC 109

Sexual offences
CRIMINAL SENTENCE INDECENT ASSAULT INCITE ACT OF INDECENCY FORM 1 MATTERS HISTORICAL OFFENCES

Citation: R v LEE, Ernest John [2018] NSWDC 109
Court: District Court of New South Wales
Date: 16 March 2018
Judge: Judge S Norrish QC

Background

The offender, Ernest John Lee, appeared for sentencing at age 81 on 12 counts of indecent assault and related sexual offences against children. The offences were committed between March 1980 and April 1998, with ten of the twelve counts falling within 1985. All four complainants were children at the time of the offending, the youngest aged ten years.

The offences involved three male victims and one female victim. The male victims, identified only by initials, were school friends or neighbourhood acquaintances of the offender's son. The majority of the offending occurred in or around the offender's home at Miranda. The conduct ranged from fondling and masturbation to an incident involving the offender directing his young son to use an object on the female victim's genitals.

The offender pleaded guilty before trial on all 12 counts on the indictment. The court was also asked to take into account a number of additional offences listed on Form 1 documents (a procedural mechanism allowing related offences to be acknowledged at sentencing without a separate conviction being recorded) in relation to five of the counts.

  • What aggregate sentence was appropriate given the number and nature of the historical offences across four victims, including Form 1 matters?
  • What discount, if any, was warranted for the utilitarian value of the guilty pleas entered before trial?
  • How should the offender's advanced age, poor health, cognitive decline, and dementia affect the sentence?
  • How should the principle of totality operate when setting an aggregate sentence across 12 counts with multiple Form 1 matters?
  • What weight should be given to comparative sentencing patterns for historical child sexual offences?

Decision

Judge Norrish imposed an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), fixing indicative sentences for each individual count before arriving at a total term that reflected the overall criminality. The court noted that the offences predated the introduction of standard non-parole periods, and that sentencing had to proceed on the basis of the law as it applied at the time of each offence.

A discount of 15% was applied to reflect the utilitarian benefit of the guilty pleas entered before trial. The court noted that some indicative sentences had been rounded down to avoid producing an unwieldy result in years, months, weeks, and days, and that the rounding operated in the offender's favour.

The court recognised the offender's significant age-related vulnerabilities, including physical infirmity, cognitive deficiencies, early dementia, and hearing difficulties, and took those circumstances into account. The sentencing remarks also addressed the impact on the victims and engaged with relevant comparative sentencing decisions from the Court of Criminal Appeal.

Applying the totality principle (which requires the overall sentence to reflect the full criminality without becoming crushing or disproportionate), the court concluded that an aggregate sentence of seven years and six months, with a non-parole period of three years, was appropriate.

Orders Made

  • The offender was convicted on all 12 counts, with the relevant Form 1 matters taken into account.
  • Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence of imprisonment was imposed comprising:
  • Non-parole period: 3 years, commencing 16 March 2018 and expiring 15 March 2021
  • Balance of sentence: 4 years 6 months, expiring 14 September 2025
  • Indicative sentences were set for each count as follows:
  • Count 1 (with Form 1): 1 year 8 months
  • Count 2: 1 year 3 months
  • Count 3: 1 year 8 months
  • Count 4 (with 4 Form 1 matters): 3 years
  • Count 5 (with 3 Form 1 matters): 3 years
  • Count 6: 1 year 8 months
  • Count 7: 1 year 6 months
  • Count 8 (with 2 Form 1 matters): 3 years
  • Count 9 (with 2 Form 1 matters): 1 year 8 months
  • Count 10: 1 year 8 months
  • Count 11: 1 year 8 months
  • Count 12 (aggravated indecent assault): 2 years 1 month
  • A 15% discount was applied across indicative sentences to reflect the utilitarian value of the pre-trial guilty pleas, with some figures rounded down in the offender's favour.

Key Takeaways

  • The District Court applied a 15% discount for the utilitarian benefit of guilty pleas entered before trial, consistent with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383.
  • Under the aggregate sentencing regime in s 53A of the Crimes (Sentencing Procedure) Act 1999, the court set individual indicative sentences for each count, with the aggregate term then calibrated to reflect the totality of the criminality rather than mechanically accumulating individual terms.
  • A sentencing court assessing historical sexual offences against children must apply the maximum penalties and legislative framework that existed at the time of each offence, including the absence of standard non-parole periods where those had not yet been enacted.
  • Advanced age, physical infirmity, cognitive decline, and dementia are relevant mitigating circumstances, but their weight does not prevent a custodial sentence where the objective seriousness of the offending is high.
  • Form 1 matters, while not separately convicted, are taken into account in setting the indicative sentence for the count to which they attach, and their presence can significantly increase that indicative term.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 53A (aggregate sentencing)
- Crimes Act 1900 (NSW), including ss 61, 61(2), 61E(1), 61M(1), 76
- Criminal Procedure Act 1986 (NSW)

Cases
- Attorney General's Application No 1 of 2002 [2002] 56 NSWLR
- Cahyadi v Regina [2007] NSWCCA 1
- DBW v The Queen [2007] NSWCCA 236
- Denham v The Queen [2016] NSWCCA 309
- Magnuson v The Queen [2013] NSWCCA 50
- Moon v The Queen [2000] NSWCCA 534
- MPB v The Queen [2013] NSWCCA 213
- Pearce v The Queen (1998) 194 CLR 610
- Power v The Queen [1974] 131 CLR 623
- PWB v The Queen [2011] NSWCCA 84
- R v AJB [2007] NSWCCA 51
- R v Anning [2014] NSWDC 359
- R v Berg [2004] NSWCCA 300
- R v BJW [2000] NSWCCA 60
- R v Collins [2017] NSWDC 281
- R v Gavel [2014] NSWCCA 56
- R v MJR [2002] NSWCCA 129
- R v Thomas [2007] NSWCCA 269
- R v Thomson and Houlton (2000) 49 NSWLR 383