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District Court 2 October 2020

R v Mould

[2020] NSWDC 670

Assault & violencePublic order & justice offences
CRIME NUMEROUS MEDICAL PROBLEMS OTHERWISE OF GOOD CHARACTER APPROPRIATE CASE FOR AGGREGATE SENTENCE SPECIAL CIRCUMSTANCES

Citation: R v Mould [2020] NSWDC 670
Court: District Court of New South Wales
Date: 2 October 2020
Judge: Neilson DCJ

Background

The offender was a voluntary baseball coach and manager on Sydney's Northern Beaches for over 30 years, working with junior players aged roughly 11 to 16. He was arrested in August 2019 at age 70 and pleaded guilty to a large number of charges: 30 counts of common assault, one count of assault occasioning actual bodily harm (OABH), 11 counts of producing child abuse material, and one count of possessing child abuse material. A further seven common assaults and one further possession charge were placed on a Form 1 to be taken into account on sentence.

There were 15 known victims, all male and nearly all minors at the time of the offending. The offending was entirely physical in nature: the offender subjected boys in his charge to painful, named techniques involving twisting toes and wrists, applying elastic bands to feet, and other forms of physical torment. His stated rationale was to "toughen up" the boys for competitive sport and the challenges of life. Some of this conduct was recorded on VHS videotapes, which the offender retained but did not distribute or replay for gratification.

The sentencing hearing required the court to grapple with an unusual combination of circumstances: the non-sexual but systematic nature of the abuse, the relevance of the offender's stated motive, the proper approach to sentencing for child abuse material charges arising from recordings of physical (not sexual) abuse, and the significant personal circumstances of a 71-year-old offender with multiple medical conditions and high-functioning Autism Spectrum Disorder.

  • Whether the offender's stated motive of "toughening up" his victims constituted any meaningful mitigating factor in sentencing
  • How to characterise and sentence the child abuse material offences, given the recordings depicted physical abuse rather than sexual abuse
  • Whether an aggregate sentence was appropriate given the large number of offences across multiple victims over an extended period
  • What weight to give the offender's age, health conditions, and Autism Spectrum Disorder diagnosis in setting the sentence
  • Whether special circumstances existed to justify altering the standard ratio between non-parole period and head sentence

Decision

Neilson DCJ noted at the outset that the case was among the most unusual he had encountered in 16 years on the criminal bench. The offender's stated motive, that he was hardening boys for sport and life, was not accepted as a convincing explanation. The court acknowledged the medical evidence about the offender's high-functioning Autism Spectrum Disorder, which contributed to a lack of insight into how his conduct could affect the mental health of victims, but did not treat the motive as a substantive mitigating consideration. The court also expressly stated there was no evidence to support categorising the offender as a paedophile, and no victim impact statement suggested otherwise.

On the child abuse material charges, the court drew a careful distinction between recordings made for dissemination and recordings of physical abuse retained without further use. Where the assault itself was separately charged, the recording of it warranted a penalty that was not particularly severe unless the material was made for distribution or replayed for gratification. However, where the underlying assault was not otherwise charged, the penalty for producing the material should be at least equal to, and somewhat greater than, the penalty for the original conduct. The offender's compulsive or hoarding tendencies were noted as relevant to the possession charges.

The court found that the offender's age (71 at sentence), numerous medical conditions, and custodial inexperience meant that imprisonment would be more onerous for him than for a younger, healthier offender. These factors did not reduce the objective seriousness of the offending but were relevant to the weight given to specific deterrence and to the practical burden of the sentence. The court found special circumstances, warranting a departure from the standard one-third ratio between non-parole period and balance of sentence, resulting in equal portions of three years and nine months each.

Given the volume and variety of offences across many victims over many years, the court imposed an aggregate sentence rather than attempting to accumulate individual terms, in accordance with the approach described in McCullough v R [2009] NSWCCA 94. Indicative sentences for individual charges were published in a table accompanying the remarks on sentence.

Orders Made

  • Aggregate sentence of seven years and six months imprisonment imposed, comprising:
  • Non-parole period of three years and nine months commencing 25 September 2020, expiring 24 June 2024
  • Balance of sentence of three years and nine months commencing 25 June 2024, expiring 24 March 2028
  • Special circumstances found, justifying the equal split between non-parole period and balance
  • Form 1 matters (seven further common assaults and one further possession of child abuse material) taken into account
  • The offender convicted on each charge to which he pleaded guilty
  • Direction that the child abuse material (VHS tapes) be destroyed once police have no further investigative use for them
  • Remarks on sentence to be forwarded to Corrective Services to assist with classification and management arrangements

Key Takeaways

  • The District Court confirmed that where recordings of physical abuse are separately charged as child abuse material, the appropriate penalty for the recording is relatively modest unless the material was produced for dissemination or replayed for gratification; where the underlying conduct is not otherwise punished, the penalty for producing the material should be at least equal to and somewhat greater than the penalty for that conduct.

  • A stated motive of seeking to benefit victims, here toughening boys for sport and adversity, does not constitute a convincing mitigating factor where the offender knew the conduct was socially unacceptable and, if he turned his mind to it, illegal.

  • Characterising an offender inaccurately, in this case as a paedophile where the offending was purely physical and no victim or evidence supported that characterisation, was treated by the court as an unjustified and significant collateral harm suffered by the offender.

  • Advanced age, serious medical conditions, and custodial inexperience are relevant to the weight given to specific deterrence and to the relative onerousness of imprisonment, even where they do not reduce the objective gravity of the offending.

  • An aggregate sentence is appropriate where a large volume of charges across multiple victims over an extended period makes individual accumulation impractical, consistent with the approach in McCullough v R.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91FA (definition of "child"), s 91FB(1) (definition of "child abuse material"), s 91H(2) (offence of producing, disseminating or possessing child abuse material; maximum penalty 10 years imprisonment)

Cases
- McCullough v R [2009] NSWCCA 94 (aggregate sentencing approach)