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District Court 11 February 2021

R v Doyle

[2021] NSWDC 21

Sexual offences
HISTORICAL CHILD SEXUAL OFFENDING AGGREGATE SENTENCE

Citation: R v Doyle [2021] NSWDC 21
Court: District Court of New South Wales
Date: 11 February 2021
Judge(s): Mahony SC DCJ

Background

The offender was the owner of a movie theatre at Kogarah, which he operated from 1968 to 2013. Over several decades, he regularly employed young persons at the theatre and used that position of access and authority to sexually offend against multiple victims. The offending spanned more than thirty years, from August 1978 to March 2010.

On 30 September 2020, the offender entered guilty pleas to six counts of indecent assault and aggravated indecent assault, in full satisfaction of an indictment. A further eight related offences were placed on two Form 1 documents (a procedural mechanism allowing additional admitted offences to be taken into account when sentencing, without recording separate convictions). Three separate victims were involved, identified by initials as JP, JE, and BR.

The offender had been arrested in October 2018 while already serving a non-parole period for other offences. He had been in custody continuously, with parole and bail refused on the index matters, since 3 January 2019. He also had prior relevant criminal history, including proceedings that had previously been considered by the NSW Court of Criminal Appeal.

  • What aggregate sentence was appropriate given the number, nature, and spread of the offences, having regard to the principles of totality and proportionality?
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify a non-parole period of less than the statutory ratio of three-quarters of the head sentence.
  • How to structure the sentence commencement date to account for the offender's pre-existing custody.
  • What weight to give to the offender's guilty pleas, age, health (including newly diagnosed Lewy body dementia and major depressive disorder), and the impact of the offending on the victims.

Decision

The court imposed an aggregate sentence of 6 years and 6 months imprisonment. In reaching that figure, the court weighed the serious and sustained nature of the offending, which involved repeated breaches of trust against vulnerable young employees, against the mitigating factors available to the offender, including his guilty pleas and significantly declining health.

The court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, departing from the standard non-parole period ratio. The basis for that finding included the previous finding of special circumstances confirmed by the Court of Criminal Appeal, the offender's recent diagnoses of Lewy body dementia and neurocognitive disorder, the development of a major depressive disorder, and his overall deteriorating psychological and physical condition. A non-parole period of 4 years was set as reflecting the minimum period to be served.

The commencement date for the sentence was fixed at 4 July 2018 to take account of the offender's time already spent in custody on related matters. This resulted in parole eligibility from 3 July 2022, with the balance of the sentence expiring on 3 January 2025. The court also vacated a suppression order that had previously been made in respect of the offender.

Orders Made

  • The offender was convicted of six counts spanning August 1978 to March 2010, comprising one count of indecent assault on a male person (Count 2, s 81 Crimes Act 1900) and five counts of aggravated indecent assault on children under authority or under 16 years (Counts 6, 8, 9, 13, and 14, ss 61M(1) and 61M(2) Crimes Act 1900).
  • An aggregate sentence of 6 years and 6 months was imposed.
  • Non-parole period of 4 years, commencing 4 July 2018 and terminating 3 July 2022.
  • Balance of term of 2 years and 6 months, commencing 4 July 2022 and terminating 3 January 2025.
  • The court certified that the eight Form 1 matters (four attached to Count 6, four attached to Count 13) were taken into account on sentence.
  • The suppression order made on 11 May 2020 in respect of the offender was vacated.

Key Takeaways

  • The District Court applied the principles of totality and proportionality when imposing an aggregate sentence across six separate convictions involving three victims and more than three decades of offending, arriving at a term that reflected the overall criminality without being crushing.
  • A prior finding of special circumstances by the Court of Criminal Appeal, combined with new and serious medical diagnoses, can together provide a sufficient basis to justify a further reduction in the non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Where an offender is already in custody serving an earlier sentence at the time of arrest on fresh charges, the sentencing court may backdate the commencement of the new sentence to reflect actual time spent in custody, thereby avoiding a disproportionate overall period of incarceration.
  • Guilty pleas to historical child sexual offences, tendered at an early opportunity relative to the arraignment, remained a relevant mitigating factor even in the context of serious and sustained offending.
  • The Form 1 mechanism allows a sentencing court to take additional admitted offences into account without recording separate convictions, with those matters increasing the weight given to the overall sentence rather than generating discrete penalties.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 61N(1), 81
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Corby v R [2010] NSWCCA 146
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Doyle v R; R v Doyle [2014] NSWCCA 4
- Imbornone v R [2017] NSWCCA 144
- Kearsley v R [2017] NSWCCA 28
- Langbein v R [2013] NSWCCA 88
- Mill v R (1988) 166 CLR 59; [1988] HCA 70
- Porter v R [2019] NSWCCA 117
- R v Fidow [2004] NSWCCA 172
- R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
- R v Grube [2005] NSWCCA 140
- R v Nelson [2016] NSWCCA 130
- R v Ruttley (No 7) [2017] NSWSC 1582
- R v Windle [2012] NSWCCA 222
- Siganto v R (1998) 194 CLR 656; [1998] HCA 74
- Valentine v R [2020] NSWCCA 116