Citation: R v Cameron (a pseudonym) [2018] NSWDC 432
Court: District Court of New South Wales
Date: 14 September 2018
Judge: Berman SC DCJ
Background
The offender, referred to by pseudonym, appeared for sentencing on four historical sexual offences committed in 1979 against a nine-year-old boy. At the time, the offender had been a rugby union coach and had moved into the victim's family home after forming a relationship with the victim's mother.
The four offences comprised two charges under what was then s 81 of the Crimes Act (assault male and commit an act of indecency, arising from touching the child's penis in a car and then performing oral sex on him at home) and two charges of buggery committed in the family bathroom. The victim screamed and cried during the buggery offences, but the offender did not stop.
By the time of this sentencing, the offender had an extensive criminal history of child sexual offending in both New South Wales and Queensland, spanning four decades. He had been in continuous custody since 18 December 1998, a period of almost 20 years at the time of sentence, and had served a total of 27 years in custody across his life. He had sexually assaulted 16 children in total.
Legal Issues
- What sentences were appropriate for the four historical offences, given the gravity of the conduct?
- How did the principle of totality apply, given that the offender had been in continuous custody since 1998 and had been sentenced for extensive related offending by other judges?
- Whether special circumstances existed that would justify varying the standard non-parole period ratio.
Decision
His Honour found the offending to be serious. The buggery offences in particular were described as grave: the offender continued despite the child's obvious pain and distress. The victim's impact statement described decades of psychological harm, including the offender entering his thoughts every single day of his life since 1979. Berman SC DCJ acknowledged that the harm caused was entirely foreseeable and profound.
On totality, the court applied the principle that where an offender would have been sentenced for all matters together had the timing of proceedings been different, the sentencing court must consider what the aggregate penalty would have been and structure the new sentence accordingly. Because the offender had been in continuous custody since late 1998, and because sentences had already been imposed by three other judges for extensive overlapping offending, a lengthy period of concurrency was required. This meant the additional custodial time attributable specifically to the offences before the court was considerably less than their individual gravity would otherwise have warranted.
Berman SC DCJ expressly acknowledged the uncomfortable consequence of this approach: the extra punishment imposed "grossly undervalues" the harm caused to the victim. His Honour noted that the victim and his loved ones might reasonably feel justice had not been done, but explained that this outcome is an unavoidable feature of how the law requires courts to sentence prolific offenders.
On special circumstances, the court found none existed. Although prolonged continuous custody would ordinarily support a finding of special circumstances, the period of parole eligibility already built into the sentence structure was considered sufficient to allow supervised reintegration and monitoring of the offender's propensity to offend against children.
Orders Made
- An aggregate sentence of eight years imprisonment with a non-parole period of six years, commencing 23 November 2013.
- The non-parole period expires 22 November 2019, being the first date of parole eligibility.
Key Takeaways
- The District Court confirmed that the totality principle requires a sentencing court to consider what sentence would have been imposed had all of an offender's matters been dealt with together, and to structure any new sentence to avoid a cumulative result that is disproportionate to the overall criminality.
- Where an offender has been in continuous custody for decades and has been sentenced for extensive related offending by multiple courts, the sentencing court must backdate the commencement of the new sentence significantly to give effect to totality, even where this produces a result that appears to undervalue the specific offending before the court.
- Prolonged continuous custody will not automatically produce a finding of special circumstances if the resulting parole period is already sufficient to allow supervised reintegration and monitoring of relevant risk factors.
- A victim impact statement was treated as central to the sentencing exercise, informing the court's assessment of foreseeable harm even where totality constrained the practical outcome.
- No special circumstances were found despite approximately 20 years of continuous custody, because the structure of the aggregate sentence already provided an adequate period on parole for supervision purposes.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), including the former s 81 (assault male and commit act of indecency)
- Crimes (Sentencing Procedure) Act (NSW)
Cases:
- No specific cases were identified in the text provided, beyond the sentencing remarks of Judge Ducker, Judge Donovan, and Judge Ellis referenced contextually.