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District Court 11 May 2018

R v DOHERTY, Carl William

[2018] NSWDC 120

Sexual offences
SENTENCE MULTIPLE OFFENDING MULTIPLE VICTIMS HISTORICAL OFFENDING ASSISTANCE

Citation: R v Doherty [2018] NSWDC 120
Court: District Court of New South Wales
Date: 11 May 2018
Judge: His Honour Judge Lerve

Background

A former high school manual arts teacher pleaded guilty to 22 counts of historical sexual offending against seven male students at Junee High School. The offending spanned from April 1965 to May 1981, though with significant gaps across that period. All victims were students at the school during the time the offender taught there.

The charges comprised seven counts of buggery (contrary to s 79 of the Crimes Act 1900), one count of attempted buggery (s 80), and fourteen counts of indecent assault male (s 81), all as those provisions stood at the time of the offending. The victims ranged in age from approximately 12 to 19 years at the time of the relevant offences, and the conduct included masturbation, anal penetration, and sexual touching, frequently occurring on overnight trips or school excursions.

The offender entered early guilty pleas to all charges, entitling him to the full 25 per cent utilitarian discount. In relation to one victim, a further numerical discount applied due to assistance provided to authorities.

  • What sentencing practices and maximum penalties applied at the time of the historical offending, and how should the court give effect to those?
  • How should the court assess the objective seriousness of offences where the statutory framework at the time of offending was not designed specifically to protect child victims?
  • How should the principles of totality and special circumstances operate across 22 counts involving seven victims over a period spanning more than 15 years?
  • What weight should be given to the breach of trust inherent in a teacher-student relationship, including where a victim had reached 19 years of age?
  • What discount applied for assistance to authorities in relation to the offending against one particular victim?

Decision

Judge Lerve confirmed that the court was obliged to sentence the offender in accordance with the prevailing sentencing practices and maximum penalties at the time each offence was committed, not by reference to the substantially higher maximum penalties subsequently introduced. His Honour acknowledged expressly that the resulting sentence was therefore less than what would have been imposed had the same conduct occurred more recently.

The court assessed the objective seriousness of the individual offences having regard to the statutory context at the time, noting that the charges of buggery and indecent assault male then contemplated consenting conduct between adult men, and that there were no specific child-focused offences in the Crimes Act as it then stood. Notwithstanding that context, His Honour found that any sexual offence against a child is serious, and assessed the seriousness of each individual count relative to the range of conduct that charge could encompass. The breach of trust arising from the teacher-student relationship was treated as a significant aggravating feature throughout, including in relation to the two offences against the victim who was aged 19 at the time, as the teacher-student relationship still existed.

Each group of offences was dealt with separately by reference to the relevant victim, with individual indicative sentences set for each count before aggregation. The court found special circumstances warranting a departure from the standard ratio between the non-parole period and the balance of the sentence. The non-parole period of 8 years and 6 months represented approximately 46 per cent of the total aggregate sentence of 18 years and 9 months, a significantly lower proportion than the statutory norm. His Honour explained this was justified given the number of offences, the age of the offender, and the need for an extended period on parole to assist with rehabilitation and reintegration.

The total sentence without the assistance discount would have been 19.5 years. His Honour noted that figure already incorporated adjustments for totality, and that the reduction to 18 years and 9 months reflected the assistance provided in relation to one victim.

Orders Made

  • The offender was convicted on all 22 counts to which he pleaded guilty.
  • An aggregate sentence of 18 years and 9 months imprisonment was imposed, with a non-parole period of 8 years and 6 months.
  • The non-parole period commenced on 1 December 2016 and expires on 31 May 2025.
  • The balance of sentence (parole period of 10 years and 3 months) runs from 1 June 2025 to 31 August 2035.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • A suppression order was made prohibiting publication of the names or identifying details of any victim.

Key Takeaways

  • The District Court confirmed that historical sexual offences must be sentenced by reference to the sentencing practices and maximum penalties in force at the time of the offending, even where subsequent legislative amendments have substantially increased those maxima.
  • A significant breach of the teacher-student relationship constituted an aggravating factor in the assessment of objective seriousness across all counts, including offences against a victim who had turned 19 but remained enrolled at the school.
  • Where the statutory offence at the time of offending was framed to capture consenting adult conduct, the court still assessed seriousness by reference to the full range of conduct the charge could encompass, treating child victims as a gravely serious end of that range.
  • Special circumstances were found to justify a non-parole period of approximately 46 per cent of the total sentence, well below the standard statutory proportion, primarily because of the volume of offending, the offender's age, and the need for an extended supervisory period upon release.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999, the court calculated a notional pre-assistance total sentence of 19.5 years, with the final aggregate of 18 years and 9 months reflecting both the totality principle and the discount for assistance to authorities.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 79, 80, 81 (as in force at time of offending)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Sentencing Act 1989 (NSW)

Cases
- AJB v R [2007] NSWCCA 51
- PWB v R [2011] NSWCCA 84
- MC v R [2017] NSWCCA 316
- Cahyadi v R [2007] NSWCCA 1
- R v AD [2008] NSWCCA 289
- Denham v R [2016] NSWCCA 309
- R v Donald [2013] NSWCCA 238
- Hermann v R (1988) 37 A Crim R 440
- R v Holder [1983] 3 NSWLR 245
- Holyoak v The Queen (1995) 82 A Crim R 502
- Humphries [2004] NSWCCA 370
- Khanwaiz [2012] NSWCCA 168
- R v Madeley [2018] NSWDC 35
- Magnuson v R [2013] NSWCCA 50
- R v Moon [2000] NSWCCA 534
- R v Muldoon (unreported, NSWCCA, 13 December 1990)
- R v TWP [2006] NSWCCA 141
- Ryan v The Queen (2001) 206 CLR 267
- R v Sukkar [2006] NSWCCA 92
- Todd v R [1982] 2 NSWLR 517