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District Court 8 March 2018

R v Victor MADELEY

[2018] NSWDC 35

Sexual offences
SENTENCING POSITION OF TRUST MULTIPLE VICTIMS SENTENCING REGIME AT TIME OF OFFENCES

Citation: R v Victor MADELEY [2018] NSWDC 35
Court: District Court of New South Wales
Date: 8 March 2018
Judge: His Honour Judge G Lerve

Background

The offender, an 82-year-old man at the time of sentence, appeared for sentencing on 22 counts of child sexual offending committed between 1974 and 1985. The offences involved seven male victims, all children at the relevant times. The offending occurred in the context of the offender's involvement with a church-affiliated boys' organisation, which he used as a vehicle for access to his victims.

The charges spanned two distinct legislative periods, with earlier offences charged under provisions of the Crimes Act 1900 as they stood before significant amendments in July 1981. The charges included indecent assault, buggery, procuring acts of indecency, and sexual intercourse without consent. Maximum penalties under the applicable historical provisions were substantially lower than those that apply under current law.

The offender pleaded guilty to counts 1 to 15 on the indictment on 2 December 2016, after a trial date had already been set. A seventh victim came forward later following publicity about the matter, and the offender pleaded guilty to a further seven counts (16 to 22) on 21 June 2017. A form 1 document containing two additional counts of indecent assault was also before the court.

  • What discount for the utilitarian value of the guilty pleas was appropriate, given the different timing of the pleas across the two groups of offences?
  • Which sentencing regime applied, given the historical nature of the offences?
  • How should the objective seriousness of each offence be assessed under the legislative framework in force at the time?
  • What aggregate sentence, non-parole period, and special circumstances finding were appropriate, taking into account the number of victims, the abuse of trust, and the offender's age and circumstances?

Decision

Guilty plea discounts. The court allowed a 12.5% discount for counts 1 to 15, settling on the mathematical midpoint between the Crown's submission of 10% and the offender's submission of 15%. The court noted that while ongoing negotiations had taken place, the plea was not entered until after the trial date had been set and allocated. A more generous discount of 25% was conceded by the Crown and applied to counts 16 to 22, reflecting that the seventh victim came forward only after the other proceedings became public and that those pleas were entered at an earlier stage.

Historical sentencing regime. The court confirmed it was obliged to sentence the offender in accordance with prevailing sentencing practices at the time of the offending, not current standards. The court explicitly acknowledged that the resulting sentence was lower than what would be imposed for equivalent conduct committed today, largely because maximum penalties have since been substantially increased by legislative amendment.

Objective seriousness. The court assessed individual counts across a range, with most falling within the mid-range of seriousness and some towards the upper end of that range. The court noted that at the time of the offending, the relevant charges technically contemplated conduct between consenting adults, which was a relevant consideration when calibrating seriousness under the historical legislative framework. The abuse of trust inherent in all offences, arising from the offender's position within the boys' organisation and his supervisory role over the victims, was a significant aggravating factor accepted by both parties.

Aggregate sentence and special circumstances. The court imposed an aggregate sentence of 18 years imprisonment with a non-parole period of 8 years and 6 months. The non-parole period represented approximately 47% of the total sentence, below the statutory default of 75% (which would ordinarily yield a higher ratio), reflecting a finding of special circumstances. The court attributed this finding primarily to the requirement to sentence in accordance with historical sentencing trends, which resulted in an adjusted balance of term on parole.

Orders Made

  • The offender was convicted on each count to which he pleaded guilty.
  • An aggregate sentence of 18 years imprisonment was imposed.
  • A non-parole period of 8 years and 6 months was set, commencing 2 December 2016 and expiring 1 June 2025.
  • The balance of the term on parole commences 2 June 2025 and expires 1 December 2043.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • Special circumstances were found, resulting in a non-parole period of approximately 47% of the total sentence.

Key Takeaways

  • The District Court confirmed that where offences were committed historically, the sentencing court is obliged to apply sentencing practices prevailing at the time of the offending, even where maximum penalties and community standards have since shifted significantly.
  • A guilty plea entered after a trial date has been set and allocated will typically attract a lower utilitarian discount than one entered at an earlier stage, with the court here settling on 12.5% for the first group of pleas.
  • Where a further victim comes forward after separate proceedings have attracted publicity, and pleas are entered promptly in respect of those additional charges, a more generous discount may be appropriate. The Crown conceded 25% in respect of the later counts.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be grounded in the requirement to sentence according to historical norms, not only in the offender's personal rehabilitation needs.
  • Abuse of a position of trust arising from an organisational or supervisory role over child victims is a recognised aggravating feature in historical sex offence sentencing, and its presence was conceded by the offender in these proceedings.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61D(1), 61E(1), 79, 81, 81A (as in force at relevant times)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Sentencing Act 1989 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2000) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- AJB v R [2007] NSWCCA 51
- Butters v R [2010] NSWCCA 1
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Denham v R [2016] NSWCCA 309
- Featherstone v R [2008] NSWCCA 71
- R v Fox [2011] NSWDC 250
- Henderson v R [2016] NSWCCA 87
- R v Holder [1983] 3 NSWLR 245
- Holyoak v The Queen (1995) 82 A Crim R 502
- R v Jacobs [2011] NSWDC 34
- R v Moon [2000] NSWCCA 534
- R v Muldoon (unreported, NSWCCA, 13 December 1990)
- PWB v R [2011] NSWCCA 84
- Ryan v The Queen (2001) 206 CLR 267
- Tuala v R [2015] NSWCCA 8
- R v TWP [2006] NSWCCA 141
- R v Van Ryn [2016] NSWCCA 1