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District Court 20 December 2019

R v McIver

[2019] NSWDC 834

Sexual offences
SENTENCING HISTORICAL CHILD SEXUAL ASSAULT BEXLEY BOYS HOME BUGGERY INDECENT ASSAULT

Citation: R v McIver [2019] NSWDC 834
Court: District Court of New South Wales
Date: 20 December 2019
Judge: N Williams DCJ

Background

The offender was a former staff member at the Bexley Boys' Home, a Salvation Army facility in Sydney that housed up to 100 boys aged between five and approximately sixteen years. The boys were either Wards of the State or had been placed in care by families unable to look after them. The offender was posted to the home for two periods: July 1968 to January 1971, and January 1972 to January 1974, during which time he held the position of assistant manager and resided in a cottage on the grounds.

The offender faced a lengthy indictment including counts of assault occasioning actual bodily harm, indecent assault, common assault, and buggery against multiple complainants. Following a judge-alone trial, he was acquitted on a number of counts by directed verdict and by the trial judge's own findings. He was convicted on four counts: one count of indecent assault against a complainant referred to as AM (count 2), one count of indecent assault against a complainant referred to as DC (count 5), and two counts of buggery against a complainant referred to as CN (counts 8 and 10).

The sentencing proceedings followed. The offender maintained his denial of guilt throughout, having pleaded not guilty at trial, and no discount for a guilty plea applied.

  • What aggregate sentence was appropriate for four historical child sexual offences committed against vulnerable boys in a residential care setting?
  • How should the offender's subjective circumstances, including his age, lack of prior criminal history, health, and community standing, be weighed against the objective gravity of the offending?
  • What weight, if any, should be given to the absence of remorse where the offender continued to deny guilt?
  • How should the principles of general deterrence, denunciation, and condign punishment be applied in the context of historical institutional child sexual abuse?

Decision

The District Court determined that the offending was objectively serious. The offences involved the sexual abuse and indecent assault of highly vulnerable children who were either wards of the State or had been placed in the home's care. The offender held a position of significant trust and authority over those children, and the Court found that he had abused that position in what it described as an abhorrent and flagrant manner.

On subjective features, the Court acknowledged the offender's lack of prior convictions (treating this as a mitigating factor relevant to rehabilitation), his age and health (evidenced by medical reports from Dr Gregory La Hood and Dr Sally McSwiggan), his record of community service within the Salvation Army, and the written support of fourteen character referees. The Court noted the ongoing support of his family, while observing that many supporters had been unable to accept the findings of guilt.

The Court confirmed that the offender was not to be penalised for maintaining his not-guilty plea or for the absence of remorse flowing from that position. However, it also confirmed that no discount applied. The Court emphasised that the principles of general deterrence and denunciation carried significant weight, noting that courts must send a clear message that child sexual abuse will attract serious punishment, notwithstanding the historical nature of the offending or the offender's otherwise positive personal history.

Applying section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court imposed an aggregate sentence and identified indicative individual sentences for each count.

Orders Made

  • The offender was convicted of counts 2, 5, 8, and 10.
  • An aggregate sentence of imprisonment was imposed with a non-parole period of five years, eight months, and 28 days, commencing 13 September 2019, and a head sentence of nine years and six months.
  • The offender became eligible for release on parole on 9 June 2025.
  • Indicative sentences (had separate sentences been imposed) were:
  • Count 2 (indecent assault, AM): two years
  • Count 5 (indecent assault, DC): two years and three months
  • Count 8 (buggery, CN): five years
  • Count 10 (buggery, CN): six years

Key Takeaways

  • The District Court applied the established principle that general deterrence and denunciation carry particular weight in cases of child sexual abuse committed by persons in positions of trust and authority over vulnerable children in institutional care.
  • A not-guilty plea neither attracts a sentencing discount nor, of itself, justifies any adverse inference about the offender's character: the absence of remorse in that context cannot be treated as an aggravating factor.
  • Where an offender is convicted following a judge-alone trial, the sentencing court finds facts consistent with the reasons given at the guilt stage, without re-litigating those findings.
  • Positive subjective features, including a clean criminal record, advanced age, health difficulties, and strong community support, remain relevant mitigating factors but do not displace the need for condign punishment in cases involving the serious sexual abuse of children.
  • Under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence requires the court to also indicate the sentence it would have imposed for each individual offence, and the Court did so here across the range of two to six years depending on the nature and gravity of each count.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 79, 81
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases
- R v Ronen [2006] NSWCCA 123
- R v Kay [2004] NSWCCA 130
- R v Pickard [2011] SASCFC 134
- Giourtalis v R [2013] NSWCCA 21
- Hurst v R [2017] NSWCCA 114
- Elchiekh v R [2016] NSWCCA 225
- R v PDM (2008) 187 ACR 152
- GAT v R [2007] NSWCCA 208
- R v Smith (1987) 44 SASR 587
- R v Zerafa [2013] NSWCCA 222
- R v Stoupe [2015] NSWCCA 175
- Gore v R; Hunter v R [2010] NSWCCA 330
- R v Lord [2013] NSWDC 16
- SM v R [2014] NSWCCA 137
- Magnusson v R [2013] NSWCCA 50
- Sabra v R [2015] NSWCCA 38
- McKittrick v R [2014] NSWCCA 128
- Coles v R [2016] NSWCCA 32
- Hili and Jones v R [2010] HCA 45
- Brown v R [2014] NSWCCA