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District Court 4 April 2022

R v McAnally

[2022] NSWDC 752

Sexual offences
CRIME SENTENCE HISTORICAL OFFENCES

Citation: R v McAnally [2022] NSWDC 752
Court: District Court of New South Wales
Date: 4 April 2022
Judge: Bourke SC DCJ

Background

The offender, Mr Francis McAnally, appeared for sentencing on two counts of being a party to the commission of an act of indecency with a male person, contrary to the now-repealed s 81A of the Crimes Act 1900. The offences occurred around 1997, when the victim (referred to as DG) was approximately 14 to 15 years old. The offender, then aged around 31, was a friend and work colleague of the victim's father.

The offences took place on two separate occasions at the offender's home in Nelson Bay. On each occasion, the offender, after supplying the victim with alcohol and marijuana, asked the victim to masturbate him to ejaculation. The victim had come to regard the offender's home as a refuge from a violent and abusive home environment.

The offending came to light approximately two decades later. In 2019, the victim disclosed the events to his partner, and subsequently made a statement to police. A surveillance warrant led to the offender making partial admissions in recorded telephone calls. He was arrested in May 2020 and, at the time of sentencing, had pleaded guilty at the earliest opportunity.

  • How to assess the objective seriousness of the offences, given that s 81A was a broad provision that covered conduct well beyond child sexual abuse, and the maximum penalty of two years imprisonment was lower than equivalent modern offences would attract
  • Whether and to what extent current sentencing patterns should apply to historical offences, as required by s 25AA of the Crimes (Sentencing Procedure) Act 1999
  • What weight to give to the offender's personal circumstances, including his age, military service, post-traumatic stress, and absence of prior or subsequent offending
  • What sentence was appropriate in the circumstances, and whether a non-custodial order was warranted

Decision

Bourke SC DCJ assessed the objective seriousness of the offences by reference to several factors: the nature of the sexual acts, the victim's age of approximately 14 to 15 years (a significant aggravating factor under the broad s 81A), the age difference of approximately 17 years between the parties, and the degree of grooming involved. The offender had cultivated a relationship with the victim over a period of weeks, exploiting the victim's troubled home circumstances and supplying alcohol and marijuana before each incident. His Honour placed the offences in the low to mid range of objective seriousness, noting that while the acts were serious, they fell short of the most grave forms of child sexual abuse.

The sentencing court was required, under s 25AA of the Crimes (Sentencing Procedure) Act 1999, to apply current sentencing patterns and to have regard to the trauma of child sexual abuse as understood at the time of sentencing, while remaining bound by the maximum penalty applicable at the time of the offences. The court acknowledged the well-established trend of increasing sentences for child sexual offences in response to greater community and judicial understanding of the long-term harm caused by such abuse, as discussed in R v MJR and other authorities.

In mitigation, the court gave considerable weight to the offender's early guilty plea, warranting a 25 per cent discount. The offender's extensive military service in Vietnam, subsequent post-traumatic stress disorder, long history of alcohol and drug dependency, advanced age (in his mid-60s at sentencing), absence of any prior or subsequent offending, good character as evidenced by numerous references, and the substantial delay between offending and prosecution were all treated as relevant mitigating factors. A psychologist's report confirmed the offender suffered from chronic PTSD arising from his war service.

Balancing the objective seriousness of the offences against these substantial mitigating factors, the court determined that the matter warranted neither a term of full-time imprisonment nor an intensive corrections order. His Honour imposed a Community Correction Order, with supervision and mandatory psychological counselling or treatment conditions.

Orders Made

  • A Community Correction Order for a period of two years and six months from the date of sentencing
  • Standard conditions: the offender must be of good behaviour and appear before the court if called upon during the order
  • Additional condition: the offender must accept supervision from Community Corrections
  • Additional condition: the offender must engage in psychological or other counselling or treatment as directed by Community Corrections
  • The offender was directed to report to the Community Corrections Office at Newcastle within 48 hours
  • Leave granted to the parties to relist the matter for any submissions or orders concerning Apprehended Violence Orders

Key Takeaways

  • Under s 25AA of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must apply current sentencing patterns for historical child sexual offences and have regard to contemporary understanding of the trauma caused by such abuse, even where the maximum penalty is fixed at a lower historical level.

  • The repealed s 81A of the Crimes Act 1900 covered a wide range of conduct between male persons and did not require the victim to be a child; the victim's age was therefore treated as a significant aggravating factor in assessing objective seriousness.

  • Grooming conduct, including cultivating a relationship with the victim over several weeks, exploiting a vulnerable home environment, and supplying alcohol and marijuana, elevated the objective seriousness of the offences.

  • A guilty plea at the earliest opportunity attracted a 25 per cent sentencing discount, and substantial personal mitigating factors, including war-related PTSD, advanced age, and the absence of prior or subsequent offending, collectively supported a non-custodial outcome despite the serious nature of the conduct.

  • Where the maximum penalty for a historical offence is comparatively low, that ceiling constrains the available sentencing range even when current attitudes and patterns would otherwise call for heavier punishment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 81A (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA

Cases
- Des Rosiers v R (2005) 159 A Crim R 549
- R v MJR [2002] 54 A Crim R 368
- R v PGM (2008) 187 A Crim R 152
- R v Sopher (1993) 70 A Crim R 570
- R v Todd [1982] 2 NSWLR 517