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District Court 2 August 2019

R v Stevenson (No 2)

[2019] NSWDC 611

Sexual offences
SENTENCING OLD OFFENCES INDECENT ASSAULT MALE PROCURE INDECENT ASSAULT PROCURE INDECENT ACT WITH MALE MULTIPLE CHILD COMPLAINANTS

Citation: R v Stevenson (No 2) [2019] NSWDC 611
Court: District Court of New South Wales
Date: 2 August 2019
Judge(s): Haesler SC DCJ

Background

A referral from the Royal Commission into Institutional Responses to Child Sexual Abuse prompted police investigations into allegations of child sexual abuse committed in southern New South Wales during the 1970s. The offender had been a youth leader with the Church of England Boys' Society (CEBS) and was alleged to have sexually abused a number of boys in his care between 1971 and 1979. Eight complainants provided statements, leading to charges being laid in 2016.

The matter was listed for trial in May 2019. Shortly before the trial commenced, the offender applied to be re-arraigned and entered guilty pleas to eight counts. Those counts included indecent assault on a male, procuring an indecent assault, and procuring an indecent act with a male. One additional matter was placed on a Form 1 (meaning it was taken into account at sentencing without a separate conviction being recorded).

The offences involved boys aged approximately seven to fifteen. The offending generally occurred during CEBS activities, with the offender exploiting his position of trust as a youth leader to gain access to victims. By the time of sentencing, several decades had passed since the conduct occurred.

  • What sentencing approach applies to historical child sexual offences under s 25AA of the Crimes (Sentencing Procedure) Act 1999, which requires courts to apply current sentencing practice to old offences?
  • How should the court balance aggravating and mitigating factors, including the long delay between offending and prosecution, the offender's age and ill health, low risk of reoffending, remorse, and vulnerability in custody?
  • What weight should be given to victim impact statements from multiple complainants?
  • What discount, if any, applied to the guilty pleas given they were entered at the last moment?
  • Whether custodial sentences were required, and how individual sentences should be structured in aggregate.

Decision

Haesler SC DCJ applied s 25AA of the Crimes (Sentencing Procedure) Act 1999, which requires courts sentencing for old offences to have regard to current sentencing practice. The judge confirmed that common law principles continue to apply alongside that statutory framework. The court acknowledged the significant objective seriousness of each offence, noting that the offender held a position of trust and used structured CEBS activities, including false pretexts such as first aid demonstrations, to facilitate the abuse of multiple children.

The court accepted several mitigating factors. The offender had voluntarily ceased offending, expressed genuine remorse (including an admission made to one complainant decades before any prosecution), posed a low risk of reoffending, and was elderly and in poor health. His youth at the time of offending and his likely vulnerability in custody were also taken into account. The judge accepted that some of these matters carried real weight, but found they could not displace the need for full-time custodial sentences given the gravity and multiplicity of the offending.

The guilty pleas were entered very late, on the eve of trial, after a preliminary hearing had resolved an evidentiary issue in the offender's favour. The judge found this timing, while saving some court time, had prolonged pressure on the victims. A 10% utilitarian discount was applied to reflect the pleas' practical value, rather than the higher discounts available for early pleas.

Victim impact statements were received from several complainants and carefully considered. The court emphasised that sentencing served to vindicate the dignity of victims, express the community's denunciation of the conduct, and signal the certainty of imprisonment for child sexual abuse. The sentences for each count were then structured into a single aggregate term, with accumulation applied to reflect the seriousness of the totality of the offending.

Orders Made

  • Count 1 (Indecent assault on male): indicative sentence of 2 years and 3 months
  • Count 2 (Indecent assault on male): indicative sentence of 2 years
  • Count 4 (Indecent assault on male, taking into account Form 1 matter): indicative sentence of 2 years and 3 months
  • Count 6 (Indecent assault on male): indicative sentence of 2 years
  • Count 8 (Indecent assault on male): indicative sentence of 11 months
  • Count 9 (Procure indecent act with male): indicative sentence of 3 years
  • Count 11 (Procure indecent act with male): indicative sentence of 11 months
  • Count 12 (Procure indecent act with male): indicative sentence of 11 months
  • Aggregate sentence: 4 years and 4 months, commencing 2 August 2019
  • Non-parole period: 2 years and 4 months; eligible for release to parole on 2 December 2021
  • Balance of term: 2 years; total sentence expires 1 December 2023
  • The Form 1 matter (old Count 5, procure indecent act with male) taken into account on Count 4

Key Takeaways

  • Section 25AA of the Crimes (Sentencing Procedure) Act 1999 requires courts to apply current sentencing practice when sentencing for historical offences, but common law sentencing principles continue to apply alongside that statutory direction.

  • A guilty plea entered at the last moment, after preliminary proceedings had resolved evidentiary issues in the offender's favour, attracts only a modest utilitarian discount. The District Court applied 10%, reflecting the limited practical benefit to the system and the prolonged burden placed on victims.

  • Mitigating factors including advanced age, ill health, genuine remorse, voluntary cessation of offending, and low future risk are relevant considerations in historical child abuse sentencing, but the multiplicity of offences and the breach of a position of trust can collectively require full-time custodial sentences despite those factors.

  • Where multiple serious offences against different victims are to be sentenced, accumulation of individual sentences is required to reflect the true criminality involved, even where an aggregate sentence is ultimately imposed.

  • Courts sentencing in these cases must expressly address the purposes of denunciation, victim vindication, and general deterrence, given the significant community interest in ensuring child sexual abuse is met with the certainty of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA
- Child Welfare Act 1939 (NSW)

Cases:
- AJB v R (2007) 169 A Crim R 32
- Attorney General's Application No 1 [2002] 56 NSWLR 146 (guideline judgment on Form 1 matters)
- DM v R [2005] NSWCCA 181
- Hoare v The Queen (1989) 167 CLR
- Kutchera v R [2007] NSWCCA 121
- Mill v The Queen (1988) 166 CLR 59
- Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497
- MPB v R [2013] NSWCCA 213
- R v Burns [2007] NSWCCA 228
- R v Fisher (1989) 40 A Crim R 442
- R v Herring (1956) 73 WN (NSW) 203
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Sellen (1991) 57 A Crim R 313
- R v Stevenson [2019] NSWDC 232 (related preliminary decision)
- R v Thomson, NSWCCA, unreported, 18 June 1996
- R v Todd [1982] 2 NSWLR 517
- Ryan v The Queen (2001) 206 CLR 267