R v Van Ryn

1. [1]

   LEEMING JA: I agree with R A Hulme J.

2. [2]

   JOHNSON J: I agree with R A Hulme J.

3. [3]

   R A HULME J: Mr Maurice Van Ryn committed 17 child sexual assault offences against 9 victims over an 11 year period from 2003 to 2014. He was sentenced in the District Court by Jeffreys DCJ on 9 September 2015 to an aggregate term of imprisonment of 13 years with a non-parole period of 7 years. The sentence was backdated to 10 December 2014. The respondent will become eligible for release on parole on 9 December 2021.

4. [4]

   The Director of Public Prosecutions (NSW) on behalf of the Crown filed an appeal against the sentence pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) on 22 September 2015. The Crown contends that the sentence is manifestly inadequate and asserts that there are numerous errors in the judge's assessment of sentence that explain why that is so.

5. [5]

   Mr Van Ryn (“the respondent”) contends that none of the asserted errors are made out; that the sentence is not manifestly inadequate; and that even if the Court found that it was, it was not such an affront to justice that the Court would be persuaded to exercise its discretion to intervene by increasing it.

6. [6]

   I am of the view that the sentence is manifestly inadequate. There were a number of specific errors made by the judge in his approach to sentencing which may explain the inadequacy of the sentence. Even if the errors were not the cause of the inadequacy, the sentence is so unreasonable and plainly unjust that it amounts to an affront to the administration of criminal justice. The Court should exercise its discretion to intervene and impose an appropriate sentence.

Sentence details

1. [7]

   The respondent pleaded guilty to 10 offences set out on one indictment ("the first indictment") and 4 offences set out on another ("the second indictment"). He also asked that his guilt in respect of a further 3 offences listed on “Form 1” documents be taken into account in the assessment of sentence for 3 of the offences to which he had pleaded guilty.

2. [8]

   The judge imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). In doing so it was necessary for him to indicate the individual sentences that would have been imposed if he were not imposing an aggregate sentence (“indicative sentences”).

3. [9]

   All of the offences were contrary to provisions of the Crimes Act 1900 (NSW). Standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 (NSW) were prescribed for most of them. In respect of those offences, it was necessary for the judge to also indicate the non-parole period he would otherwise have imposed. (His Honour did not comply with this requirement in respect of count 1 in the first indictment but that has no effect on validity: s 54B(7).)

Facts

1. [10]

   The following summary of the facts pertaining to the respondent’s offending is drawn from a statement of agreed facts which was before the sentencing judge.

2. [11]

   The respondent lived with his wife in the Bega district during the period of the offending. He was a prominent member of the community by virtue of his position as Chief Executive Officer of Bega Cheese Pty Limited. He also held a number of volunteer positions in the community. He and his wife lived in a large home with a swimming pool, spa and tennis court. Their children were all adults who had left home. The respondent knew each of his victims, mostly by association with their parents or grandparents.

3. [12]

   Victim 1 was a 10 year old girl whose family had a practice of visiting friends in the Bega district during the summer school holidays. The two families would often visit and socialise at the respondent’s home. There was an occasion during the 2004 summer holidays when Victim 1 went to the respondent’s home with her parents and siblings. At some point she changed into her swimming costume and entered the pool. She remembered people getting in and out of the pool. At one point the respondent was sitting next to her and he placed his hands on the inside of her swimmers and felt her buttocks. He removed his hand and she moved away to sit with her mother. Sometime after this she was again seated next to the respondent and he placed his hand down the front of her swimmers and rubbed her genitalia. Victim 1 then got out of the pool and thereafter kept away from the respondent. She did not complain about his conduct because she was upset and confused by his actions.

4. [13]

   The family of victim 2 lived in the Bega district and were friends with the respondent’s family. Victim 2 suffered from bullying at school and as a result spent a large amount of time at home on his computer. He would visit the respondent’s home on most occasions that his parents did so. Victim 2 enjoyed being at the respondent’s home because he was able to use the swimming pool, spa and play computer games. The respondent befriended him and the pair formed a close relationship. He gave him small gifts, soft drinks and lollies and paid him for performing odd jobs. Victim 2 began spending time alone with the respondent. When he was aged between 10 and 11 the respondent initiated sexual contact with him. This involved him sitting next to victim 2 on the lounge and rubbing his upper thigh.

5. [14]

   The respondent’s behaviour escalated to the point that when victim 2 was aged between 11 and 12 the pair would have a spa together. During those occasions he would place his hand on the upper thigh of the victim before moving it to touch his genitals. Victim 2 said this touching of his genitals happened “on a number of occasions”. It was an agreed fact that this conduct occurred regularly in the period when victim 2 was aged 12 to 14.

6. [15]

   On one occasion when victim 2 was aged 12 the respondent sat beside him on the lounge and masturbated his penis while masturbating his own penis. The respondent then commenced performing oral sex on victim 2, continuing until he ejaculated. The respondent performed oral sex on victim 2 on a number of occasions up until he turned 15.

7. [16]

   On another occasion when victim 2 was aged 13½ he was with the respondent in his home office. The respondent played a pornographic CD on his computer. He began masturbating victim 2 whilst masturbating his own penis. He then performed fellatio upon victim 2 before standing in front of him with his own erect penis near the face of victim 2. He placed his hands on the back of the boy’s head and attempted to pull his mouth towards his penis. Victim 2 turned his head away. The respondent said, “It’s okay, just try it”. Victim 2 declined but the respondent tried again to the point where his penis touched the mouth of victim 2. He then released the boy’s head and they put their clothes back on.

8. [17]

   A similar incident occurred a few months later in the lounge room after the respondent began playing a pornographic movie on the television. It culminated in him attempting to insert his penis into the mouth of victim 2. Victim 2 kept his mouth closed but could feel the respondent’s penis pressing against his lips. The respondent said, “Just open your mouth up and stop tensing”. Victim 2 shook his head and the incident concluded.

9. [18]

   When victim 2 was aged 14 he went with the respondent on an overnight stay to Canberra. The respondent picked him up from school on a Friday afternoon and they went to watch a rugby game in a corporate box owned by Bega Cheese at Bruce Stadium. After the game they travelled to a motel room where the respondent gave him alcohol which he consumed. As they were sitting on a bed the respondent put on a pornographic movie on his laptop computer. He then began masturbating victim 2 and performed oral sex on him. He stopped and put victim 2, who was naked, onto his stomach and then straddled him. Victim 2 could feel the respondent’s penis touching him between the cheeks of his backside. Victim 2 moved away and the respondent desisted. They then watched more of the pornographic movie and had another alcoholic drink before they went to separate beds.

10. [19]

    There was another occasion when victim 2 went with the respondent to gather oysters on the Bega River. The respondent showed victim 2 a pornographic magazine and began rubbing victim 2’s penis. He was rubbing his own penis as he did so. He then performed oral sex on victim 2.

11. [20]

    Another incident occurred when victim 2 was aged 14½. He was in the lounge room at the respondent’s house watching television. The respondent sat next to him and commenced masturbating him and himself and then removed their clothing. He knelt in front of victim 2 and tried to insert his penis into victim 2’s anus. Victim 2 wriggled and the respondent’s attempt failed. The respondent then rolled victim 2 onto his stomach and then achieved penetration of the boy’s anus with his penis. This caused victim 2 pain and he called out. The respondent removed his penis and they put their clothes back on. Victim 2 had bleeding from the anus shortly after and the respondent did not attempt anal sex with him again.

12. [21]

    Victims 3 and 4 were brothers. Their grandparents lived in the Bega district and they would often stay with them. The grandparents were friends with the respondent and his family and often visited his home. Victims 3 and 4 would attend such social gatherings with their parents and grandparents when they were in the area.

13. [22]

    There was an occasion when victim 3 was aged about 10 or 11 when he was at the respondent’s home with his family. A number of guests were either in or in the vicinity of the spa. Victim 3 entered the spa with a number of people including the respondent. At one point the respondent was next to him and reached across and inserted his hands into victim 3’s swimmers and took hold of his genitals.

14. [23]

    Victim 4 recalled an occasion when visiting the respondent’s home when he was 8 or 9 years old. He was in the downstairs area of the home playing with Lego. The respondent entered the room and asked victim 4 to sit on his lap and the boy did as he was told. The respondent placed his hand down the back of the boy’s shorts and rubbed his buttocks.

15. [24]

    The offence taken into account in the assessment of sentence for count 4 was a repetition of conduct which constituted count 6. The Form 1 offence involved the respondent for a second time and the same evening placing his hands into victim 4’s shorts and taking hold of his genitals.

16. [25]

    On another occasion when victim 4 was visiting the respondent’s home when he was aged 9 or 10 there were a number of guests who were either in the spa or its vicinity. Victim 4 entered the spa with a number of people including the respondent. At one point the respondent reached across and inserted his hands into victim 4’s swimmers and took hold of his genitals.

17. [26]

    On another occasion when victim 4 was aged 12 he was in the lounge room of the respondent’s home watching television when the respondent approached and placed his hand into victim 4’s shorts and took hold of his genitals. (The Form 1 offence described above occurred subsequently.)

18. [27]

    The family of victim 5 lived in the Bega district and developed a close friendly relationship with the respondent and his family. Victim 5 recalled an occasion during the summer holidays of 2011/12 when he was 13 years old. Victim 5 was in the computer room intending to download some music from the respondent’s computer to victim 5’s iPod. The respondent approached and opened the front Velcro section of victim 5’s board shorts and took hold of his penis. He commenced stroking it and as he did so he said, “One day I am going to put my mouth around it”. Victim 5 was shocked and remained seated.

19. [28]

    On 23 July 2014, victim 5 was being given a driving lesson by the respondent. As victim 5 was driving the respondent placed his hand on to victim 5’s thigh. Victim 5 attempted to move his leg away but the hand remained on his thigh. At one point the respondent leant across and tried to kiss the side of his face but victim 5 pulled his head away.

20. [29]

    Victim 6 was a sibling of victim 5. He recalled an occasion when he was about 13 years of age when he was in the computer room of the respondent’s house looking at a movie on the computer. The respondent knelt beside him and put his hand on his knee and then moved it to his groin. He then put his hand under victim 6’s shorts and took hold of his penis and commenced to rub it. Victim 6 said he was scared and just sat there.

21. [30]

    Victim 7 grew up with his family in the Bega district and would often spend time at the respondent’s home. He recalled an occasion when he was 13 years old when he and some other boys and adults were there. At one point the respondent picked victim 7 up and carried him to a quiet area of the pool. The respondent positioned himself so that he had his back to the other persons in the pool area. He said to victim 7, “Do you want to be my special friend? You can be my special friend.” As he was saying this he was tickling victim 7 but then moved his hand down his chest to his groin. He then began fondling victim 7’s genitals on the outside of his board shorts. This continued for about a minute until someone approached.

22. [31]

    Victim 8’s family were regular visitors to the respondent’s home. On the evening of 5 June 2014, when victim 8 was aged 8, she was in the downstairs area of the home playing with some toys. The respondent’s wife and victim 8’s mother were upstairs. The respondent approached her with his pants open and with his penis exposed. He walked towards her and put his hands on her arms and moved them towards his body. She pulled her arms away from him and walked away. She left the house with her mother shortly after. On the drive home she disclosed what had happened to her mother. Her mother contacted the respondent’s wife and let her know what had happened. Police were then contacted.

23. [32]

    Victim 9 moved with his family into the area in early 2010 and they became acquainted with the respondent. Victim 9 was aged 15. The respondent offered victim 9 the opportunity to use the facilities at his home including the swimming pool, spa, computer equipment and tennis court. A relationship developed to the point where victim 9 saw the respondent as a father figure and role model and he visited the respondent on a very regular basis.

24. [33]

    On an occasion in early 2010 the respondent and victim 9 were in the spa when the respondent placed his arm around victim 9 and lifted him onto his lap. Victim 9 felt that the respondent had an erection which he felt against his back. Victim 9 did not say anything when this happened because he “froze”, was embarrassed and not sure what to do.

25. [34]

    Victim 9 said that this occurred on most occasions that he was in the spa with the respondent up until December 2010.

26. [35]

    On one of the occasions when the respondent was in the spa with victim 9, he moved victim 9 onto his lap and victim 9 could feel the respondent’s erect penis against his back. The respondent placed his hand inside victim 9’s swimmers and pulled them down. He could then feel the respondent’s erect penis rubbing against his buttocks. The respondent was groaning as he did this. Again, victim 9 did not say anything because he “froze”, was embarrassed, and not sure what to do.

27. [36]

    On another occasion victim 9 was in the spa the respondent placed his hand inside victim 9’s swimmers, held his penis and masturbated him. Victim 9 said he did not say anything when this happened for the same reasons earlier indicated. Victim 9 said that this type of incident occurred on most occasions that he was in the pool or spa with the respondent or was using the respondent’s computer.

28. [37]

    On one occasion when victim 9 was visiting the respondent’s home they were watching movies together. The respondent placed his hands down the front of victim 9’s pants and commenced masturbating him. After about 5 minutes the respondent removed victim 9’s lower clothing. He then performed fellatio on victim 9 who was seated on a couch. The respondent then took hold of his arms and moved him onto the floor. The respondent inserted his penis into victim 9’s anus. Victim 9 felt immediate pain. The respondent began thrusting his penis into victim 9’s anus causing more pain. The respondent said, “Does that feel good?” Victim 9 replied, “No it hurts”. The respondent said, “Can I cum inside you?” Victim 9 replied, “No”. The respondent had anal intercourse for some 5 minutes before he stopped after victim 9 indicated he was feeling pain.

29. [38]

    Victim 9 said that the respondent had penile/anal intercourse with him on about 3 separate occasions but could not identify the other occasions with specificity. He said the respondent performed fellatio on him at least 15 to 20 times during 2010.

30. [39]

    Victim 9 moved away from the area in 2013. In 2014 he became aware that the respondent had been charged. He made contact with a counselling agency before contacting police in May 2014.

Personal circumstances of the respondent

1. [40]

   The respondent was aged 60 at the time of sentencing. He had been married for 34 years and had 3 adult children. He was described as having had a positive childhood and had not been exposed to violence or sexual abuse. He had a degree in business studies and had a very successful career in business, working as an accountant with Elders IXL for 10 years and then with the Bega Cheese company for 26 years.

2. [41]

   He was the chief executive officer of Bega Cheese until he stood down in 2006 and took up a role as international business manager. The company became very successful under his stewardship. He retired at the end of 2012 and then performed some part-time work for a pharmaceutical company.

3. [42]

   The respondent gave evidence in the sentence proceedings and a number of documents were tendered. They included reports by Dr Bruce Westmore and Dr Jeremy O’Dea, forensic psychiatrists, and by Dr Donald Rowe, neuropsychologist. There were also a statement by the respondent’s wife and a bundle of character references.

4. [43]

   The respondent has no criminal history in New South Wales but was dealt with for an offence of indecent exposure in Victoria in 1981.

5. [44]

   Dr Westmore assessed the respondent shortly after he was arrested in July 2014. He referred the respondent to Dr O’Dea for treatment and reassessed him in January 2015.

6. [45]

   Dr Westmore reported that the respondent had told him that he had pleaded guilty to 12 counts of “indecent assault basically”.

7. [46]

   The respondent told Dr Westmore that all of the offences occurred in his own home. He accepted that he had inappropriate relationships with the victims, “But they all loved being with me and unfortunately, I loved being with them. None of them ever turned on me for what I did to them”.

8. [47]

   Dr Westmore had available to him the Court Attendance Notices and the Statement of Facts. He said, “I note behaviour consistent with grooming and the detailed description of the offending behaviour in relation to each of the victims”. He indicated that the respondent was not denying any of those details.

9. [48]

   The respondent told Dr Westmore that his marriage had been a generally happy one and that he had a satisfactory sexual relationship with his wife although in recent years the frequency of intimacy had decreased.

10. [49]

    The respondent described sexual attractions and fantasies which included younger women and sometimes teenagers and also, some less frequent fantasies involving pre-adolescent children. Dr Westmore said that the respondent’s principal non-adult based sexual focus appeared to be directed towards children who are in the transition between being pre-pubertal into early puberty. He also acknowledged longstanding and repeated fantasies of exposing himself. His sexual thoughts, feelings and impulses towards very young teenagers, mainly girls but sometimes boys, had been more persistent and intrusive and had represented a problem for him for many years.

11. [50]

    The respondent confirmed to Dr Westmore that he had been seeing Dr O’Dea and had commenced with anti-libidinal medication in November 2014. He told Dr Westmore that within two weeks his testosterone levels had reduced significantly and “the change that happened to me mentally was staggering. It was like a veil had been lifted, a breath of fresh air. Prior to the medication, most of my days were associated with inappropriate thoughts but, within a space of two or three weeks, my life changed mentally.” He also said that “the constant intrusive inappropriate fantasies just weren’t there anymore”. He also said, “the tragedy of all of this is, you don’t see ads on television (that say), if you are this way (sexually attracted to children), you can do something about it”. He wondered why there was not more proactive information about these particular sexual problems.

12. [51]

    The respondent told Dr Westmore that he had continued taking the medication after going into custody in December 2014 and intended to keep doing so, including after release. He also said that he would be “more than happy” to attend a sex offenders program.

13. [52]

    The respondent said that he continued to receive strong support from his wife and three children and expects that this will continue when he returns to the community.

14. [53]

    Dr Westmore asked the respondent whether the offending behaviour was wrong and the respondent replied, “Of course it was wrong, it is illegal and if it negatively and hurtfully hurt the victims (it was wrong)”. He acknowledged a breach of trust: “I abused that trust that their parents gave me and the kids themselves gave me and for that, I’m eternally regretful”.

15. [54]

    The respondent spoke of being in protection as a “limited association prisoner” although he reported having no major difficulties; he got on with the officers and other inmates. He received a lot of visits from family members.

16. [55]

    Dr Westmore described the respondent as presenting with complex Paraphilic Disorder. He diagnosed him as suffering from an Exhibitionistic Disorder (sexually aroused by exposing genitals to pre-pubertal children). He also considered it appropriate to make a diagnosis of Paedophilic Disorder (non-exclusive type – sexually attracted to both males and females). He noted that the respondent’s self-reported aberrant sexual focus is towards pre-pubescent children who are entering early pubescence. Dr Westmore queried whether others might debate whether the respondent’s condition was more consistent with Hebephilia. However he thought that was probably more of a semantic issue. Noting the age range of the victims (8 to 15) he thought the respondent might have both conditions.

17. [56]

    Dr Westmore said that people who suffer from Paraphilia, such as the one suffered by the respondent, have a genetic/constitutional vulnerability to behave in such a way. The paraphilic component of the respondent’s sexual profile was an integral part of his “sexual orientation”. Dr Westmore did not believe that that component can be changed, altered or extinguished, but believed that, with appropriate psychiatric intervention, aspects of it could be contained and controlled.

18. [57]

    Dr Westmore said it was too early to pass any definitive opinions in relation to the respondent’s long-term risk but there were some early positive indicators which might suggest that his long-term risk of re-offending is in the lower range. In this regard, Dr Westmore said:

19. [58]

    Dr Westmore also acknowledged limitations associated with risk prediction. The extent to which the respondent participated in a sex offenders program would be important as would his ongoing willingness to take medication in the long-term, and perhaps for the rest of his life. He considered that the respondent would need to remain under the care of a psychiatrist indefinitely.

20. [59]

    The respondent had seven consultations with Dr Jeremy O’Dea between the referral from Dr Westmore in July and when his bail was revoked in December 2014. Dr O’Dea saw him again on 24 January 2015 and provided a report a short time later.

21. [60]

    Dr O’Dea’s report included an account of the offence of indecent exposure committed in Melbourne in 1981. The respondent told Dr O’Dea that he had been driving his car at dusk one evening when he had his penis out. He said it was not erect and he was not masturbating. When he stopped at traffic lights a paperboy aged about 12 saw him and took his registration number. As a result the respondent immediately went to the police station and gave himself in. He received a fine and a bond with a condition that he attend a psychiatrist. He said that he had six to eight counselling sessions with a psychiatrist over four to six months.

22. [61]

    (This account of the 1981 offence is at odds with what the respondent told Dr Rowe who said that "he reported being caught masturbating in his car".)

23. [62]

    Dr O’Dea noted the various offences to which the respondent had (at that stage) pleaded guilty and noted that they included “apparent grooming behaviours, and repeated sexual relations with a particular male child … including anal intercourse”. The respondent told him that the majority of his sexual offences against children “have been in my house … not outside … on my turf … after a period of friendship …”.

24. [63]

    The respondent reported lifelong specific and strong sexual fantasies and urges towards both male and female children. These urges had been experienced on a daily basis in the past. He said, “I thought they were my fantasies … that most of my life I could control them and keep them as fantasies”. He also told Dr O’Dea of experiencing problems with exhibitionism which he described as a longstanding issue since his teenage years.

25. [64]

    Dr O’Dea reported that the respondent said that he had a satisfactory sexual relationship with his wife.

26. [65]

    In describing the respondent’s presentation at interviews, Dr O’Dea said, “He has shown remorse, regret and contrition for his actions in relation to his paedophilia, exhibitionism and sex offending behaviours.” (The doctor did not say how.)

27. [66]

    Dr O’Dea diagnosed the respondent as suffering from “Paraphilic Disorders, namely Paedophilic Disorder, sexually attracted to both males and females, not limited to incest, predominant if not exclusive (so called Bisexual Paedophilia); and Exhibitionistic Disorder (Exhibitionism)”.

28. [67]

    It was Dr O’Dea who prescribed anti-libidinal/testosterone lowering medication to the respondent in November 2014. He described this being considered the most effective treatment for the respondent’s diagnosed condition. After several weeks the respondent reported not having any sexual fantasies towards children. Testing by Dr O’Dea showed a significant reduction in testosterone levels. When the respondent was reviewed by Dr O’Dea in custody on 24 January 2015 he spoke of being in control of his paedophilic urges and fantasies and wanted to continue the medication through to his eventual release into the community.

29. [68]

    Dr O’Dea said that the respondent would require ongoing forensic psychiatric assessment and treatment in the community in the long-term aimed at assisting him to successfully manage and minimise the risk of him engaging in further sex offending behaviours.

30. [69]

    Dr O’Dea said that the type of paedophilia suffered by the respondent would be generally considered a form of sexual orientation that people would not necessarily choose. The treatment, including the anti-libidinal medication, was not a cure but allowed a patient to control and/or extinguish urges and fantasies and therefore control and extinguish abhorrent behaviours, thereby conducting themselves safely in the community.

31. [70]

    Dr O’Dea provided a second report after being advised of the further charges that came to be placed on the second indictment. He said that those additional offences did not alter the substance of the opinions that he had expressed previously.

32. [71]

    The respondent saw Dr Rowe in November 2014 and January 2015. The history he gave included masturbation on an average of twice per day prior to receiving anti-libidinal medication. Dr Rowe opined that this was abnormal and a symptom of hypersexual behaviour.

33. [72]

    The respondent told Dr Rowe of a “relatively normal sex life with his wife for approximately 20 years, after which it began to decline with little or no sexual intimacy for the past 5 to 10 years”. Dr Rowe noted the coincidence of an absence of sexual relations with his wife with the commencement of the alleged offences in 2004. It was Dr Rowe’s opinion that this “most likely contributed in part to more wayward avenues of sexual excitement and relief”.

34. [73]

    The respondent told Dr Rowe that he “semi-retired” in 2004/2005 which left him with additional recreational time. Again, Dr Rowe noted the coincidence with the commencement of the offences. He wrote:

35. [74]

    The respondent’s report of an average of 14 and up to 28 orgasms per week throughout his adult life, generally obtained through masturbation, in addition to frequent thoughts of sexual acts, brothel visits and unprotected sex, were consistent with a chronic case of hypersexual behaviour.

36. [75]

    Dr Rowe noted a high incidence of childhood ADHD in individuals with hypersexual disorder (17 %) and of those with both hypersexual disorder and a paraphilic disorder (50 %). He reviewed the respondent’s high school reports and noted that his “scholastic background is consistent with the presence of ADHD type features and a probable diagnosis. Neuropsychological testing administered and interpreted by Dr Rowe confirmed in his mind a diagnosis of “high functioning ADHD”. He wrote:

37. [76]

    Dr Rowe cited the offence committed against victim 8 (count 10) as an example of the effects of ADHD and hypersexual disorder. The respondent had told Dr Rowe that the victim and her mother had spent the prior two weeks with him and his wife. He said that there was a lot of playful and physical contact between himself and the victim. He told Dr Rowe, “I had a brain snap and quickly realised what I was doing was wrong and covered up … I didn’t have an erection”.

38. [77]

    (I note that this is inconsistent with the agreed statement of facts which says that the victim and the mother were at the respondent’s premises on the relevant evening for a meal and the child disclosed to her mother what had occurred on their way home. Further, the claim to having had a "brain snap" is seemingly at odds with the agreed fact that the respondent approached the child whilst she was alone in a downstairs area of the house playing with toys while her mother and the respondent's wife were upstairs.)

39. [78]

    Dr Rowe summarised the significance of his findings of the respondent having ADHD, Hypersexual Disorder and Paedophilia/Hebephilia as follows:

40. [79]

    Dr Rowe also reported that the respondent had suffered “deep regret and depression” over the experience. The respondent had said that he knew that what he was doing was wrong but at the time had not considered the consequences. He also acknowledged that “he had caused hurt to his family and was concerned about any potential damage he had inflicted on the victims”.

41. [80]

    Dr Rowe noted that the respondent had commenced taking anti-libidinal medication. He considered that he had displayed a motivation to treat his condition. The respondent had said to him, “If only these sorts of medication treatments were advertised for individuals with my sort of problem”.

42. [81]

    On the subject of risk of re-offending, Dr Rowe said:

43. [82]

    Dr Rowe provided a further report after being advised of the further offences in the second indictment. He, like Dr O’Dea, confirmed that they did not alter his previously expressed opinions.

44. [83]

    A letter by the respondent’s wife was tendered which spoke extensively of the achievements he had made whilst CEO of the Bega Cheese company. She also outlined the charitable and other good works the respondent had provided to the Bega Valley community. Ms Van Ryn spoke of a number of negative aspects of the media publicity the case had attracted including some distressing events directed at her. She confirmed her commitment to support the respondent in the future. She said, “I have full confidence that he is totally remorseful for his action and wants nothing more than to redeem himself”. (What led her to think that he was "totally remorseful" was not explained.)

45. [84]

    The respondent’s various positive attributes and his commitment and contribution to the local community were confirmed in a body of character references.

46. [85]

    On the subject of remorse, a retired teacher said, “Maurice has shown remorse and is doing everything in his power to amend his behaviour”. His uncle wrote, “He is genuinely sorry for what he has done and now truly realises the harm that can often flow from actions such as this”. A former manager at Bega Cheese who had maintained both business and social contact with the respondent said that he had “expressed to me his regret and remorse on many occasions for his past actions”.

47. [86]

    The sentence hearing commenced before Jeffreys DCJ at the Bega sittings of the District Court on 4 February 2015. The first indictment was presented and pleas of guilty were entered. It should be noted that the respondent had previously entered pleas of guilty in the Local Court on 25 November 2014.

48. [87]

    The respondent gave evidence when the hearing resumed on 26 February 2015. He confirmed that he had told the truth to the authors of the various reports and that what appeared in them accurately represented what he had said. He accepted the diagnosis of Paraphilic Disorder and he confirmed that he had been sexually attracted to children since his early teens.

49. [88]

    In relation to the indecent exposure in Victoria in 1981, the respondent said that he saw a psychiatrist for two or three months over six to eight consultations but he did not derive any benefit from it.

50. [89]

    He was asked by his counsel to explain why the offending started in 2004 and he said, that he could not: “I think it’s fair to say that the control that I had over those sexual urges that I had, there were those odd moments unfortunately when I didn’t exert the control that I should have”. (Emphasis added)

51. [90]

    He agreed that he knew that what he was doing was wrong and that it was against the law. He was asked whether he knew that it carried a risk of harm to children and he said that whilst it was not in the forefront of his mind at the time but he understood there was a “potential” risk of harm to children. He repeated that he “wasn’t able to resist that urge that hit me at that moment … it was an urge to touch basically … I just did not have the control and I touched”.

52. [91]

    The respondent was reminded that the offending progressed beyond touching and he said, “It did in one case”. (He had not been charged with the offences on the second indictment at that time.)

53. [92]

    He was asked whether he groomed any of the children in the sense of engaging in behaviour designed to make them receptive to sexual offending and he gave a categorical denial. He denied planning any of the assaults and maintained that they were “all opportunistic at a moment in time”.

54. [93]

    He was asked whether he was aware of the existence of anti-libidinal medication prior to 2014. He said he was not and “that’s a real part of the tragedy of the story”. He added, “I’ve been pretty upset about the fact that there were things out there I could have done that I have never known about”.

55. [94]

    He gave the following evidence on the subject of remorse:

56. [95]

    Evidence was given about the conditions of custody he had experienced and he referred to being the subject of verbal abuse and accepted that he would always require protection within the prison system.

57. [96]

    In cross-examination the respondent was asked about his reference to “a few minutes of stupidity” and it was suggested to him that he was “playing it down somewhat”. He replied:

58. [97]

    The offence taken into account in relation to count 7 involved an incident that occurred a short time after the respondent had been arrested and he gave the following evidence about it:

59. [98]

    He was pressed as to his denial of grooming behaviour. He denied that there were incentives for the victims to be at his house. He explained that he had a “very, very open house and a very, very sociable house” at which not only children but their parents and friends were welcome. He described himself as “an extremely hospitable person”. He was asked whether having things such as pay TV, a pool, and a spa were things that attracted children but he said he could not see the point and asked rhetorically, “What am I going to do, fill in the swimming pool?” He agreed, however, that he did not do anything to discourage children from coming to his home.

60. [99]

    In relation to victim 2 the respondent accepted that the events the subject of the persistent child sexual abuse charge spanned a four year period and covered a wide variety of activity up to and including intercourse. He maintained however that they were spur of the moment or spontaneous acts. He was pressed by reference to the trip to watch the rugby game in Canberra where he stayed overnight with victim 2 in a motel room. It was suggested that he would have had it in his mind that there would be sexual contact during that trip but he said, “Not necessarily, no”.

61. [100]

    Further on the question of remorse, there was the following evidence:

62. [101]

    The sentence hearing was adjourned to Sydney on 20 April 2015. At that point the Crown tendered a report of Professor David Greenberg of 15 April 2015. Professor Greenberg is a forensic psychiatrist who described himself as an internationally recognised expert in the area of sex offenders and treatment of paraphiliac disorders. Professor Greenberg had not conducted an assessment of the respondent but had reviewed the documentary evidence including the reports of Drs Westmore, O’Dea and Rowe.

63. [102]

    Professor Greenberg, speaking generally, said that “sexual child predators often use grooming behaviours which are deliberate tactics such as befriending and establishing an emotional connection with a child to lower the child’s inhibitions and gain their trust in order to sexually abuse them”. He referred to references in the documentary material to the respondent having a home with a spa, swimming pool, a computer and computer games. He noted that access to these would have been attractive to young children. He also referred to the agreed fact that the children were provided with small gifts, lollies and soft drinks. He referred to the use of pornographic material in relation to some of the children. There was also the reference to victim 2 having been shown pornography and provided with alcohol on the trip to Canberra. Reference was also made to the outing to the Bega River to gather oysters and, in respect of victim 5, giving a 15 year old boy a driving lesson. Professor Greenberg continued:

64. [103]

    Professor Greenberg agreed with the diagnosis of Drs O’Dea and Westmore that the respondent likely had a Paedophiliac Disorder. He noted that Dr Rowe had referred throughout his report to the respondent having “paedophilic tendencies” but pointed out that the respondent met the DSM-IV criteria for having a Paedophiliac Disorder.

65. [104]

    Professor Greenberg also agreed that the respondent likely had a “Hebophilic Activity because of sexual activity also involved these children during their pubertal development [sic]".

66. [105]

    Professor Greenberg was critical of Dr Rowe’s apparent acceptance of the respondent’s claim in relation to the offence in count 10 that he had a “brain snap”. He said that paedophiliac activity is associated with "goal directed behaviour"; "there is often planning and intentional behaviour to get access to children".

67. [106]

    Reference was made to Dr Rowe’s diagnosis of the respondent having “high functioning Attention Deficit Hyperactivity Disorder”. Professor Greenberg said that whilst the respondent may or may not have ADHD, persons with such a disorder do not sexually abuse children. He saw no causal relationship between the respondent having that condition and his sexual molestation of eight children over a decade. He noted that the respondent had tertiary qualifications and had worked at a high level in a business for many years and said, “It is therefore questionable how these deficits or weaknesses in executive functioning was of great significance in his decision making, reasoning, consequential thinking and careful judgment”.

68. [107]

    Professor Greenberg took issue with Dr Rowe’s diagnosis of the respondent having Hypersexual Disorder. He noted that it was not accepted in the DSM-V or any earlier versions as being a mental disorder. “The acceptance of such a condition as a disorder has not gained wider acceptance in the general clinical sex offender expert community as yet and its validity has been questioned by some researchers”.

69. [108]

    Reference was made to the differing accounts given by the respondent to Drs Westmore, O’Dea and Rowe about his sexual experience with his wife. It was Professor Greenberg’s opinion that, “not having a sexual outlet with his wife is not a causative factor for paedophiliac behaviour and lack of sexual outlet cannot be used to justify his paedophilic behaviour”. Professor Greenberg noted that “individuals with a Paedophiliac Disorder often deny, minimise and justify their behaviour”.

70. [109]

    He also disagreed with Dr Rowe’s assessment that if recommendations for treatment were implemented, the likelihood of the respondent having a relapse or re-offending would become increasingly “negligible”.

71. [110]

    Professor Greenberg concluded his review of Dr Rowe’s report as follows:

72. [111]

    Professor Greenberg agreed with Drs Westmore, O’Dea and Rowe that with psychosexual treatment combined with anti-libidinal treatment the respondent’s risk of re-offending may possibly or likely be reduced. He added, “Although less likely, it may over time not be reduced because there is no cure for this disorder”.

73. [112]

    Generally on the subject of anti-libidinal treatment, Professor Greenberg said that many sex offenders who voluntarily undertake such treatment use it until such time as their parole expires. The treatment is voluntary and is often ceased at that point. Such treatments cannot be enforced on any individual. Moreover, individuals may also develop medical complications and may have to cease treatment as a result.

74. [113]

    Professor Greenberg was called to give evidence. He maintained his view that if the respondent did suffer from ADHD it did not have any significant role to play in the causation of his paedophilia activity. He was informed that the respondent had described his offending behaviour as “minutes of madness” (in fact “a few minutes of stupidity”). He gave this evidence:

75. [114]

    In cross-examination Professor Greenberg was tested as to his inability to see the link between ADHD and the offending. His response was to the effect that it was necessary to distinguish between impulsive behaviour generally and sexual impulsivity.

76. [115]

    The sentencing judge took up the questioning on this subject and Professor Greenberg explained that if there was impulsivity in terms of a lack of control by somebody with ADHD "it would apply to all actions, it wouldn't be specifically only with sexual behaviour with children".

77. [116]

    In relation to Dr Rowe’s diagnosis of Hypersexuality Disorder, Professor Greenberg expressed the need for caution in that it was based on self-report by a person facing legal sanction.

78. [117]

    Lastly Professor Greenberg was asked about “grooming behaviours” used by child sexual predators and referred to the opinion expressed in his report that the facts of the respondent’s offences included a description of activities consistent with grooming. He maintained that they were consistent, “in the context of having eight children who were reportedly sexually abused”. He agreed that this could have been conduct carried out with an intention or a plan to create opportunities for sexual activity but he agreed that this was not necessarily the case.

79. [118]

    In re-examination Professor Greenberg was asked again about the respondent having ADHD:

80. [119]

    Dr Rowe was also called to give evidence. He said in chief that he had recently conducted a Static Test (“2002 R”). The result was that the respondent was assessed as posing a “low to moderate” risk of re-offending. In cross-examination he said he had not previously conducted that particular test because he had not been aware of such tests.

81. [120]

    Dr Rowe disagreed with Professor Greenberg on the ADHD issue. It was his view that “ADHD doesn’t generalise across all behaviours and activities”.

Victim Impact Statements

1. [121]

   A number of victim impact statements were tendered and they indicated a range of emotional and psychological harm that the offences had caused. Perhaps unsurprisingly, victims spoke of feeling anger, betrayal, mistrusting others, personal guilt, and concerns about personal relationships. Two of the victims (Victim 1 and Victim 2) also spoke of having engaged in self-harming behaviours as part of their reaction to what occurred to them.

The sentencing judgment

1. [122]

   In view of the widespread attack made by the Crown in relation to the sentencing judgment it is appropriate to summarise it in some detail. It comprised the following components:

2. [123]

   A prominent feature of the sentencing judgment is the fact that it comprises many statements of general principles but very little reasoning is exposed. It is one thing to state a principle; more important is some explanation of how it is being applied. This will be a recurring theme when I come to deal with the specific errors for which the Crown contends.

Principles applicable to a Crown appeal against sentence

1. [124]

   In R v JP [2015] NSWCCA 267, Hoeben CJ at CL conveniently provided the following statement of principles applicable to a Crown appeal against sentence brought pursuant to s 5D(1) of the Criminal Appeal Act:

2. [125]

   It should also be noted that in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [69] the plurality also stated that epithets such as "gross" or "an affront to the administration of justice" are "indicative of a qualitative judgment that the inadequacy of the sentences imposed is so marked that the need for its correction to maintain public confidence in the criminal justice system outweighs other considerations, including any resulting disparity with unchallenged sentences against a co-offender".

3. [126]

   Even if appellable error is established, it remains for the appellant to persuade the Court to vary the sentence imposed by the court of trial: CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308 at [6] (French CJ and Gageler J); [56]-[66] (Kiefel, Bell and Keane JJ).

Grounds of Appeal

1. [127]

   The Crown raised the following grounds of appeal:

Ground 1 – failure to assess objective seriousness

1. [128]

   As can be seen from the summary of the sentencing judgment set out above, nowhere was any indication given by the judge as to the view he formed as to the seriousness of the offences.

2. [129]

   Counsel for the respondent submitted that making an assessment of the objective seriousness of the offences is such a basic aspect of the sentencing task that it is "implausible that this experienced sentencing judge failed to perform" it. The task was likened to processes such as engaging in an intuitive synthesis of all relevant facts; something judges do all the time without being expected to state that they have adhered to the requirement. The problem with this argument is that making and stating an assessment of objective seriousness is not a process; it is an essential task required by authority.

3. [130]

   Authorities were cited for the proposition that post-Muldrock (Muldrock v The Queen [2011] HCA 39; 244 CLR 120) a judge is not required to specify where on a scale of objective seriousness an offence falls: Badans v R [2012] NSWCCA 97 at [55] (in relation to offences carrying a standard non-parole period) and Belghar v R [2013] NSWCCA 245 at [58]-[60]. However, the Crown's complaint is not that the judge failed to specify objective seriousness on a scale; it is that he failed to make, or state, any assessment at all.

4. [131]

   The written submissions set out a list of "numerous indications" in the sentencing judgment that the judge did make an assessment of objective seriousness. The majority of the items listed are simply references to statements made by the judge of general propositions. The judge only stated two findings he had made concerning the seriousness of the offences: rejection of the Crown’s contention that there had been “grooming” and acceptance that the offences were aggravated by there having been a breach of trust.

5. [132]

   In oral submissions, Mr Odgers SC contended that the judge was not required to resolve disputes between the parties as to the level of objective seriousness of the offences; an assessment could be made as to what he thought about their seriousness by looking at the sentences imposed. However, it was also accepted that the judgment "wasn't as transparent as it should have been and the reasons are not as well articulated as they should have been". Nevertheless, the primary submission was that the ultimate issue was whether the sentence was manifestly inadequate and that any inadequacy of reasons was not determinative.

6. [133]

   In the summary of the sentencing judgment set out above it is clear that apart from reciting the facts of the offences the judge made no assessment of their objective seriousness or, if he did, he said nothing about it. Latham J observed in R v Cage [2006] NSWCCA 304 at [17] that:

7. [134]

   In R v Campbell [2014] NSWCCA 102 at [27] Simpson J (as her Honour then was) (with whom Hall J agreed) stated:

8. [135]

   One reason that it is important for there to be some assessment of the seriousness of an offence is because one of the purposes of sentencing is to ensure that the offender is adequately punished for the offence: s 3A(a) Crimes (Sentencing Procedure) Act. Another reason is the requirement that a sentence should not exceed, or be less than, what is proportionate to the gravity of the crime: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15] (Spigelman CJ). Further, it enables use of the legislative guideposts of the maximum penalty and any prescribed standard non-parole period: R v West [2014] NSWCCA 250 at [27] (Adamson J).

9. [136]

   In Delaney v R; R v Delaney [2013] NSWCCA 150 the Crown raised a ground asserting that the sentencing judge had failed to determine the objective criminality of the offences. Hoeben CJ at CL (with whom the other members of the Court agreed) responded (at [56]):

10. [137]

    That is not this case. Jeffreys DCJ simply recited the facts by reference to the statement of agreed facts. There were lengthy references to, and quotations from, various authorities on the seriousness of sexual assault offences committed against children. It is one thing to refer to the general proposition that child sexual assault is a serious crime; it is another to identify the relative seriousness of the case at hand.

11. [138]

    Both parties made submissions to the judge about the objective seriousness of the individual offences. For example, in written submissions, counsel for the respondent urged a finding that most of the offences were serious but below the middle of the range. A concession was made that the offence against s 66EA of persistent child abuse was above the mid-range but the judge was urged to find that it was not at or near the top of the range. In the main, the Crown's submissions were that the offences were at or above mid-range, although it was conceded that the offence in count 9 was below that level. The judge did not engage with these submissions at all.

12. [139]

    The only way of discerning what his Honour thought of the objective seriousness of the individual offences is by drawing an inference from the indicative sentences he specified. For example, he clearly regarded the aggravated indecent assault offences in count 7 of the first indictment (indicative sentence 3 years) and count 2 in the second indictment (indicative sentence 2 years 6 months) as more serious than all of the other aggravated indecent assault offences (indicative sentences of 12 months). But this is as far as one can go in inferring what his Honour thought about the objective seriousness of offences.

13. [140]

    By drawing inferences from the indicative sentences the most that can be said is that his Honour engaged in no more than a broad brush fashion with the assessment of the seriousness of the offences. For example, 12 months was considered an appropriate sentence for seven of the nine offences against s 61M(2) regardless of the age of the victim ("the younger the victim the more serious the offence" (RJA v R [2008] NSWCCA 137; 185 A Crim R 178 at [13] (Spigelman CJ))) and despite a concession by the Crown that the offence in count 9 was less serious than the other offences against this provision.

14. [141]

    I am satisfied that the sentencing process miscarried, either by the judge failing to make any assessment of the seriousness of the offences or, if he did, failing to say anything about his reasoning and conclusions as a result of such assessment.

15. [142]

    In these circumstances, it remains for this Court to make some assessment of the objective seriousness of the offences in the course of determining the issue posed by the second ground as to whether the aggregate sentence is manifestly inadequate.

Ground 2 – manifest inadequacy

1. [143]

   In addition to the error asserted under the previous ground, the Crown contended that there were further specific errors that led to the imposition of a manifestly inadequate sentence.

Error 1 – finding that the respondent did not engage in grooming behaviours

1. [144]

   Professor Greenberg observed that child sexual predators often use grooming behaviours by which he meant "deliberate tactics such as befriending and establishing an emotional connection with a child to lower the child's inhibitions and gain their trust in order to sexually abuse them. They obtain access to children by creating opportunity to interact with children. They may rely on psychological manipulation and desensitization methods with these children to obtain eventual compliance with their sexual acts. They may also try to make them feel special by giving these children attention, gifts, or special treats".

2. [145]

   Professor Greenberg referred to some of the respondent's conduct as set out in the agreed facts and described it as "common grooming activities used by paedophiles".

3. [146]

   Dr Westmore referred to the statement of facts and said: "I note behaviour consistent with grooming".

4. [147]

   Dr O'Dea also described "apparent grooming behaviours" set out in the statement of facts. It should be recalled that Dr O'Dea had seven consultations with the respondent before writing his report. It may be assumed that the claim by the respondent in his evidence that he did not engage in grooming was not conveyed to Dr O'Dea.

5. [148]

   Despite this expert evidence, Jeffreys DCJ was not satisfied that the respondent was being untruthful in his evidence denying grooming any of the victims. This is a surprising finding, particularly in relation to Victim 2 (count 2) and Victim 9 (counts 1 to 4 in the second indictment).

6. [149]

   In the course of discussing this issue in his sentencing remarks, the judge said some remarkable things. In the context of referring to the frequency with which there would be visitors including children at the respondent's home he said:

7. [150]

   There were 17 offences that the respondent had pleaded guilty to or had asked the judge to take into account. They occurred from the beginning of 2003 to mid-2014. The agreed facts also referred to numerous other occasions of offending by way of masturbation, fellatio and anal intercourse in relation to Victim 2 and Victim 9. To describe the offending as occurring "sporadically" is a serious understatement.

8. [151]

   The judge rejected the Crown's contention that grooming was evident on the occasion the respondent took Victim 2 (when he was 14 years' old) to see a rugby game in Canberra with tickets to a corporate box, an overnight stay in a motel room, alcohol being provided and pornography being displayed on his laptop computer. The judge said that grooming was not the only available inference and so he was not satisfied beyond reasonable doubt that the respondent "intended when he got the complainant there to participate in sexual activity". He did not say what alternative inference there was.

9. [152]

   The Crown contended that the judge was in error in ignoring the preponderance of the evidence and giving unwarranted weight to the opinion of the respondent that he did not groom his victims. By doing so he failed to take into account a matter that seriously exacerbated the criminality of the offending.

10. [153]

    Counsel for the respondent pointed out that whilst the judge was not satisfied beyond reasonable doubt that there was grooming, equally he did not make a finding in the respondent's favour that there was not grooming. It was also submitted that for the Crown to succeed in relation to this asserted error it was necessary for it to persuade the Court that the judge's failure to be satisfied of an aggravating circumstance beyond reasonable doubt was "not reasonably open". Where the psychiatric evidence was couched in terms of behaviour "consistent" with grooming and "apparent" grooming behaviour, it was submitted that the judge's finding was reasonably open.

11. [154]

    In my view, the submissions of counsel for the respondent should be accepted; but that is not the end of the issue. Some of the things the judge said in this context are concerning. More significant, however, is that his Honour did not engage with the undisputed evidence which gave rise to the Crown's contention. These are matters that are relevant to an assessment of the objective seriousness of the offences; something with which this Court will need to engage with in the absence of the sentencing judge having done so.

Error 2 – finding "deep contrition"

1. [155]

   The sentencing judge referred to various aspects of the evidence from which he concluded that "the offender has shown deep contrition" (ROS 29.3).

2. [156]

   The Crown referred to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act which provides that remorse is a mitigating factor if the offender has provided evidence of acceptance of responsibility for his or her actions and has acknowledged any injury, loss or damage caused (or made reparation).

3. [157]

   It will be evident from the earlier summary of the respondent's evidence that he was not completely forthcoming with an acknowledgement of the harm his offences occasioned his victims. He used terms such as "potential risk of harm"; "I might have hurt"; and "harm I may have caused". The strident response he gave when cross-examined about the indecent assault of Victim 5 during a driving lesson (“I reckon that’s pretty thin for an indecent assault”) was hardly indicative of "deep contrition". Further, he sought to downplay the seriousness of many of the offences by his description of them being "a few minutes of stupidity". At the hearing of the appeal, Mr Odgers conceded that "it's pretty clear from [the respondent's] evidence that he did have tendencies to somewhat underplay the seriousness of the offending".

4. [158]

   Despite the above, the judge was uncritical of any of the respondent's evidence. To the limited extent that he referred to it, he accepted it.

5. [159]

   Aside from the respondent's evidence, his Honour also took into account that he had acknowledged his guilt from a very early time and had promptly sought out psychiatric treatment. There were also the various expressions of his remorse set out in the medical reports and his wife's statement.

6. [160]

   Despite the respondent's earlier reticence to fully acknowledge the harm he had caused his victims, towards the end of his evidence he said that he understood the long term consequences of such offences. It was open to the judge to accept that on the balance of probabilities this made good the second limb of the mitigating factor in s 21A(3)(i).

7. [161]

   Using the expression "deep contrition" is rather extravagant in the light of some of the evidence given by the respondent. But I cannot conclude that a finding of remorse was not open to the judge to make, particularly in light of the fact of the early pleas of guilty.

Error 3 – the approach to the finding of ADHD

1. [162]

   Dr Rowe assessed the respondent as having "high functioning ADHD" as well as a Hypersexual Disorder. He said that patients with ADHD do not necessarily commit criminal acts, "but in the presence of other factors such as hypersexuality and certain environmental factors the individual may not be able to sufficiently inhibit their strong sexual impulses or other impulsive behaviours".

2. [163]

   Neither Dr Westmore nor Dr O'Dea made these diagnoses or were asked to comment upon Dr Rowe's opinion about causality.

3. [164]

   Professor Greenberg did not dispute the diagnosis of ADHD but disagreed that there was a causal connection with the respondent's sexual offending. He said in his report, "there is no causal relationship between having 'high functioning ADHD' (or ADHD for that matter), and sexual molestation incidents with eight children over a period of a decade". He noted Dr Rowe's assessment of the respondent having a "high average to superior level of intelligence"; his tertiary qualifications; and his management of a large public company. He said, "It is therefore questionable how these deficits or weaknesses in executive functioning was of great significance in his decision making, reasoning, consequential thinking and careful judgment". Further, he said "To date there is no credible literature to support a significant causality between 'high functioning ADHD' and paedophilic re-offending (sexual recidivism)".

4. [165]

   In his oral evidence, Professor Greenberg referred to the absence of any suggestion of impulsivity in the respondent's life aside from his offending. He said that a person with ADHD would be impulsive in all activities, including, for example, their work.

5. [166]

   The sentencing judge referred to the conflict between Dr Rowe and Professor Greenberg on this issue and accepted the opinion of Dr Rowe on the basis that he had the advantage of having assessed the respondent, seen school reports and administered tests.

6. [167]

   It would seem that the judge found that there was a causal connection between the condition of ADHD and the offending behaviour:

7. [168]

   The Crown submitted that Dr Rowe entered the field of psychiatry in expressing any opinion about a link between the offending and the respondent having "high functioning ADHD". In WW v R [2012] NSWCCA 165, which was concerned with sentencing for driving in a manner dangerous causing death, a psychologist ventured the opinion that the offender's ADHD "affected him to some degree at the time of the offence, particularly around the area of inattention on the road". Hoeben JA said:

8. [169]

   The Crown submitted that another way in which Dr Rowe went beyond his expertise was to express opinions about the efficacy and suitability of various medications which he was not qualified to prescribe and of which he had no personal experience.

9. [170]

   There is force in these submissions by the Crown but it needs to be recognised that Dr Rowe's report was placed before the sentencing judge without any objection. Further, the prosecutor who appeared in the District Court did not ask the judge to completely reject Dr Rowe's opinions about the significance of ADHD; he simply submitted that it would not have "any great significance in this particular case". Counsel for the respondent in this Court submitted that this was an acceptance that it could be given some weight and the judge did not indicate that he gave it any more than "some weight".

10. [171]

    If the opinion of Dr Rowe about a causative link between the respondent's hypersexuality, ADHD and his offending behaviour had not been before the court, it still would have been open to the respondent's counsel to have adduced evidence of his client having those two conditions and, in conformity with WW v R, to have submitted that the judge should accept that there was such a link.

11. [172]

    The Crown made other criticisms of Dr Rowe's opinions. It is unnecessary to refer to them all but it is worth mentioning the submission that Dr Rowe's diagnosis of Hypersexual Disorder was not made by the psychiatrists. That may be because it is not a condition listed in DSM-V. Professor Greenberg explained that hypersexuality as a disorder "has not gained wider acceptance in the general clinical sex offender expert community as yet and its validity has been questioned by some researchers". However, he added:

12. [173]

    Dr Rowe's "diagnosis" of "Hypersexuality Disorder" was based upon a history provided by the respondent and he was not challenged on that history in cross-examination by the prosecutor. It follows that whether or not there is a recognised "disorder" of hypersexuality, it was open to be accepted that the respondent had a higher sex drive which could mean he had more difficulty controlling his paedophiliac urges.

13. [174]

    The judge's acceptance that the respondent had a condition of ADHD which had an impact upon his inhibitions may well be a finding that others would not have made. But again, the limits on appellate review of fact finding leave me to conclude that it was one that was open to the judge to make.

14. [175]

    What the judge did with the finding remains unknown. He said no more about it. He had earlier referred to the various ways in which a mental condition may be relevant to sentence (by his reference to Director of Public Prosecutions (Cth) v De La Rosa) but that simply involved statements of sentencing principles with no attempt made to say whether, and if so how, they were applied to the case at hand.

15. [176]

    The problem, as I see it, is that the judge gave no apparent consideration to how any impulsivity of the respondent arising from a condition of ADHD might have had any bearing upon the individual offences. Some of the offences, for example indecently assaulting children in the pool or the spa, were of short duration and might well have resulted from impulse. There would be considerable difficulty in describing others as the product of impulse, such as those which involved the respondent finding a child alone in a room of his house, and more so those that occurred in the context of the long term sexual abuse of Victims 2 and 9.

16. [177]

    In the end, I do not think that resolution of this assertion of error is necessary. The error is said to be in making a finding; but the significance of the finding upon the assessment of sentence is impossible to discern because of the lack of reasoning disclosed by the sentencing judge.

Error 4 – error in approach to the respondent's paedophilia and questions of general deterrence and personal deterrence

1. [178]

   The Crown contended that there was error in the judge's failure to find that general and personal deterrence were important considerations on sentence and that this led to (or contributed to) the imposition of a manifestly inadequate sentence.

2. [179]

   The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said:

3. [180]

   Where an offender suffers from some mental condition it may be relevant to sentencing in the variety of ways described by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa at [177]. One result might be that less weight is given to the need for general and personal deterrence and denunciation.

4. [181]

   The judge made reference to general principles but said nothing to indicate whether, and if so to what extent, he was factoring into the assessment of sentence any need for general or personal deterrence.

5. [182]

   The Crown referred to Benitez v R [2006] NSWCCA 21; 160 A Crim R 166 at 175 and R v Wright (1997) 93 A Crim R 48 at 51 where it was said that when an offender with some form of mental condition acts with knowledge of what they are doing and of the gravity of their actions, any moderation of general deterrence need not be great. This was a matter of some significance in the Crown's submission. Whatever be the mental condition of the respondent, he was an intelligent man who made the following concessions to the questioning of his counsel:

6. [183]

   The respondent's primary mental condition was one of paedophilia. It did not involve any cognitive impairment. His offences involved conscious and deliberate actions accompanied by knowledge that it was both wrong and illegal. For these reasons it was submitted that the respondent remained an appropriate vehicle for general deterrence, denunciation and personal deterrence.

7. [184]

   The written submissions for the respondent referred to the acceptance in the court below that general and personal deterrence had a role to play; the submission was simply that less weight might be given to them. It was open to the judge to accept that submission.

8. [185]

   It was also submitted for the respondent that there was no fixed or predetermined degree to which general deterrence should be taken into account in sentencing: R v Lattouf; R v MF [2015] NSWCCA 283 at [56]; Muldrock v The Queen at [20]; and Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465 at 476.

9. [186]

   The submissions of both parties convey a debate in a vacuum. It is all very well to argue about how deterrence and denunciation might have been taken into account. But it is impossible to know whether, and if so how, the sentencing judge dealt with these issues. He certainly referred to general principles but said nothing about how he applied them.

10. [187]

    Given the importance of deterrence in cases involving the sexual assault of children, particularly of general deterrence, this, like the failure to make (or state) any assessment of objective seriousness, represented another way in which the sentencing process miscarried. There was, to use the words of Johnson J in R v Porte [2015] NSWCCA 174 at [88], "a clear and fundamental failure to explain how the sentence to be imposed had been arrived at".

Error 5 – the approach to the respondent's prospects of rehabilitation and failure to consider the risk to the community

1. [188]

   The sentencing judge found that "the offender has been progressing extremely well in relation to anti-libidinal treatment and it is my view that he has reasonable prospects of not offending whilst ever he is on that treatment".

2. [189]

   I do not believe there is any error in this finding. It was appropriately qualified by the concluding seven words. It cannot be said that it was not a finding that was open to be made. Importantly, it was not a finding that there were "good" prospects of rehabilitation so as to amount to a mitigating factor pursuant to s 21A(3)(h) of the Crimes (Sentencing Procedure) Act.

3. [190]

   The judge did not expressly refer to any finding on the subject of the protection of the community. At an early stage of his judgment he quoted s 3A of the Crimes (Sentencing Procedure) Act which includes as one of the purposes of sentencing: "to protect the community from the offender". Later he quoted from [177] in the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa as follows:

4. [191]

   The "dot point" the judge declined to take into account was as follows:

5. [192]

   Counsel for the respondent submitted that by not being satisfied that he should take that "dot point" into account, the judge was not saying that he did not take protection of the community into account at all. It rather suggested that he was not satisfied that the respondent was a high danger to the community or that there was "a particular need to give consideration to the protection of the public".

6. [193]

   The Crown submitted that the way the judge put aside the final "dot point" indicated that the judge did not consider there was a need to take protection of the community into account.

7. [194]

   The submissions for the respondent should be preferred. The final dot point in paragraph [177] of the judgment of McClellan CJ at CL simply indicates that in the circumstances referred to there may be a need to give additional weight to specific deterrence and the protection of the community. I do not take his Honour to be suggesting that where those circumstances do not arise there is no need to give any weight to either of those purposes of sentencing.

8. [195]

   However, nowhere in the judge's reasons is there any indication that he regarded personal deterrence and community protection as being of any importance.

9. [196]

   The Crown submitted that where the cause of the respondent's offending was an incurable sexual orientation (Paedophilic Disorder) and where prospects of reoffending are entirely dependent on the voluntary acceptance of drug treatment, it will always be necessary to consider the need for protection of the community and to balance that consideration against the prospect of rehabilitation.

10. [197]

    Even though early signs might be seen as encouraging, the evidence of Drs Westmore and O’Dea was to the effect that it was too early to make any definitive finding about the respondent's risk of reoffending. The respondent's stated intention was that he would continue taking anti-libidinal medication for the long term. However, there could be no guarantee of this. The taking of such medication may be precluded by side effects; it cannot be enforced; and Professor Greenberg spoke of his experience of many sex offenders ceasing treatment at the end of their parole period.

11. [198]

    Once again, the error in relation to these topics of personal deterrence and community protection is not so much a matter of positively not taking them into account but the lack of any indication that they were.

Error 6 – error in the approach to special circumstances and the setting of an erroneously lenient non-parole period

1. [199]

   The non-parole period specified by the judge constitutes 53 per cent, or 7 years of the 13 year aggregate term. If the judge had not made a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act the non-parole period would have been one of 9 years 9 months.

2. [200]

   One of the reasons for finding special circumstances was that the respondent had not previously been imprisoned. The Crown noted that this has been doubted as a sound basis for making such a finding: Clarke v R [2009] NSWCCA 49 at [12]; Collier v R [2012] NSWCCA 213 at [36]. However, this was not the only basis for the finding. It would seem that the more significant basis was the need for the respondent to have a longer period under parole supervision in the community to ensure compliance with his treatment needs: "a longer period of support in relation to his mental problems when he re-enters the community". His Honour also said:

3. [201]

   It is notable that the judge did not indicate why a potential parole period as long as six years was thought necessary to serve these purposes for reducing the non-parole component of the sentence.

4. [202]

   The Crown argued that there was error in both the finding of special circumstances as well as the extent by which the non-parole period was reduced.

5. [203]

   The Crown submitted that there was no evidence that a parole period in the usual statutory proportions (in this case 3 years 3 months) would be inadequate to assist the respondent's rehabilitation.

6. [204]

   The Crown's primary submission, however, was that a non-parole period of 7 years "could not possibly reflect the profound criminality involved in the respondent's conduct". Reference was made to various authorities, including the judgment of Spigelman CJ in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [65] where his Honour spoke of the need for a non-parole period to reflect "all of the circumstances of the offence and the offender – including the objective gravity of the offence and the need for general deterrence".

7. [205]

   In Caristo v R [2011] NSWCCA 7 I summarised the relevant principles:

8. [206]

   Counsel for the respondent pointed out that the Crown Prosecutor had not opposed a finding of special circumstances, saying "It's the first time that Mr Van Ryn has been in custody". The prosecutor's opposition was confined to an argument that the non-parole period should not be reduced to 50 per cent of the overall term as had been submitted on the respondent's behalf.

9. [207]

   Having regard to the position adopted by the Crown below, I would reject its contention here that there was error in making a finding of special circumstances. Whether this Court would make such a finding is another matter. And the question whether a 7 year non-parole period is manifestly inadequate will be considered below.

Error 7 – error in the approach to the Form 1 offence committed on bail

1. [208]

   This error is said to have affected the manner in which the judge took into account the Form 1 offence when assessing the sentence for count 7.

2. [209]

   When a sentencing court is asked to take an offender’s guilt in respect of one or more other offences into account, the task is still confined to imposing sentence for the primary offence. However, in doing so it may increase the penalty that would otherwise be appropriate by giving greater weight to the need for personal deterrence which the commission of the other offences will frequently indicate is called for and to retribution because of the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42] (Spigelman CJ). See also Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413.

3. [210]

   The additional offence taken into account in relation to count 7 was committed whilst the respondent was on bail. He had been charged with the offence in count 10 on 16 June 2014 and committed the offence that was on the Form 1 with Victim 5 on 23 July 2014.

4. [211]

   The sentencing judge refused to find that committing the Form 1 offence whilst on bail was an aggravating factor because: “It seems to me that there is a danger of double-counting if I take into account as an aggravating factor the matter on a Form 1”.

5. [212]

   It is difficult to understand that statement. On one view, his Honour may have misconceived the issue. The Form 1 offence was not an aggravating factor in respect of the principal offence. That the Form 1 offence was committed on bail was an aggravating feature of that offence itself. In any event, I cannot understand what concern his Honour held about “double-counting”.

6. [213]

   In any event, I do not consider that this asserted error requires resolution of the competing submissions. The indicative sentence for count 7 was 3 years, the longest for any of the offences against s 61M(2). The Crown's appeal is against the aggregate sentence, not the indicative sentences. Assuming the Crown's contention is correct, the indicative sentence for count 7 should have been longer; but not by any substantial margin. In the context of the totality of the respondent's criminality, a slightly longer indicative sentence for count 7 would not have had a material bearing upon the assessment of the aggregate term.

7. [214]

   However, one statement by the sentencing judge should not escape mention. He said:

8. [215]

   The emphasised words mirror what his Honour said when sentencing the offender in Hinchcliffe v R [2013] NSWCCA 327. In the course of allowing the appeal against the manifestly inadequate sentence imposed in that case it was said by Johnson J (Leeming JA and Hall J agreeing) that Mr Odgers (who coincidentally appeared) "acknowledged that this observation of the sentencing judge did not accord with principle". Johnson J explained:

Error 8 – error in the approach to the fact that the s 61M and s 61O offences are capable of being prosecuted in the Local Court

1. [216]

   This asserted error refers to the following passage of the remarks on sentence (which, despite the statement of the error, is confined to s 61M offences):

2. [217]

   When announcing the indicative sentences that would have been imposed for the individual offences, his Honour commenced:

3. [218]

   His Honour did not say anything about the possibility of summary disposal in the Local Court when announcing any of the other indicative sentences. It is doubtful that this means that he did not think it was relevant to any other offence as it seems clear from his earlier statement that he regarded it as relevant to all of the s 61M offences.

4. [219]

   Offences against ss 61M and 61O(2) may be dealt with summarily in the Local Court unless either the prosecutor or the accused elects for them to be dealt with on indictment: s 260 and Table 1 in Sch 1 of the Criminal Procedure Act 1986 (NSW). The maximum term of imprisonment that may be imposed by the Local Court in either case is 2 years: s 267(2). That is a "jurisdictional limit" of the Local Court, not the maximum penalty for the offence: R v Doan [2000] NSWCCA 317; 50 NSWLR 115 at 123 [35].

5. [220]

   Reference should be made to the judgment of Johnson J in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [84]-[121] for a comprehensive survey of the principles relating to summary disposal of indictable offences and when it may be appropriate when sentencing in the District Court to take into account the possibility that an offence may have been dealt with in the Local Court.

6. [221]

   The Crown contended that because of the objective seriousness of the offences against s 61M and s 61O, and the fact that other offences could only be dealt with on indictment, it was not the case that these offences would have been the subject of summary disposition in the Local Court. Whilst the judge was technically correct as to the possibility, the practical reality was that there was no mitigation flowing from this at all.

7. [222]

   Guideline 8 of the Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales furnished pursuant to s 13 of the Director of Public Prosecutions Act 1986 (NSW) makes clear that an election to proceed on indictment should be made in a case such as this where the criminality of the offender could not be adequately accommodated within the sentencing parameters available in the Local Court and where the offender is also charged with strictly indictable offences.

8. [223]

   Counsel for the respondent submitted (with reference to authority) that "the applicable principle is that where an offence could reasonably (or 'appropriately') have been disposed of in the Local Court, the sentencing court should take into account that fact". So much may be accepted. But the fact is that it would not have been reasonable or appropriate for any of the present offences to be finalised in the Local Court.

9. [224]

   It was also submitted that "as a general proposition, it would be appropriate to impose the likely sentence that the offender would have received in the Local Court if the offences had been disposed of there".

10. [225]

    Johnson J made an observation in Zreika v R (at [112]) to the effect that the theoretical availability of summary disposal is not a relevant sentencing consideration unless it can be shown that "it is plainly wrong that the offence is in the District Court". A common example of it being "plainly wrong" is where the offence was only in the District Court because the offender was also prosecuted for a strictly indictable offence for which he or she was there acquitted. The two authorities cited by counsel for the respondent for the "general proposition" just mentioned, Peiris v R [2014] NSWCCA 58; 240 A Crim R 114 and R v El Masri [2005] NSWCCA 167, were both examples of such a case.

11. [226]

    Counsel for the respondent maintained that in accordance with Pearce v The Queen [1998] HCA 57; 194 CLR 610 it is necessary for a judge in a multiple offence sentencing exercise to first determine the appropriate sentence for each individual offence before turning to a consideration of totality. In this way, it was submitted, the individual offences could have been considered as appropriate for summary disposal in the Local Court. With respect, I cannot accept the logic of this in a case where there are a significant number of charges with some being strictly indictable. Although it was said that it was not necessary for a judge to look at each offence in a vacuum, it was submitted that the gravity of the offences must be determined individually. I accept the latter but it does not justify invocation of an artificial consideration that if each offence was prosecuted in isolation from the others they might have been dealt with in the Local Court.

12. [227]

    I am satisfied that the judge was wrong to take into account the sentences that might have been imposed in the Local Court for the s 61M offences where it would have been entirely inappropriate for such indictable offences to be the subject of summary disposal.

Error 9 – error in the approach to totality

1. [228]

   Street CJ described the principle of totality in sentencing in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 as follows:

2. [229]

   In R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46], the Court (McClellan CJ at CL, Hulme and Hislop JJ) emphasised the need to maintain public confidence in the administration of justice when sentencing for multiple offences by endorsing the remarks of Sully J in the two-judge bench decision in R v Wheeler [2000] NSWCCA 34 at [36]-[37]:

3. [230]

   In R v XX (2009) 195 A Crim R 38 at [52], Hall J set out a number of propositions derived from the case law concerning the discretionary exercise of ordering sentences to be served concurrently or cumulatively in accordance with the principle of totality. They included reference to the following passage in the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41at [27]:

4. [231]

   The Crown contended that the indicative sentences were unduly lenient (which is a matter left for consideration in relation to the overall complaint of manifest inadequacy) but there was also an inadequate notional accumulation of those sentences in arriving at the aggregate sentence.

5. [232]

   Whilst the Crown accepted that the approach to totality is not strictly mathematical, it sought to illustrate and make good this complaint by reference to the indicative sentences specified in relation to Count 2 on the first indictment and counts 3 and 4 on the second indictment. Count 2 has an indicative sentence of 8 years and each of counts 3 and 4 has an indicative sentence of 4 years. If the sentencing exercise had involved only these offences, an appropriate measure of partial accumulation would have yielded an aggregate term very close to, or the same as, the 13 year aggregate term arrived at by Jeffreys DCJ. This was said to be illustrative of the fact that the aggregate sentence did not reflect the totality of the respondent's criminality as it left largely unpunished the multitude of offences committed in relation to seven other victims.

6. [233]

   Counsel for the respondent, correctly with respect, pointed out that the Crown's complaint in relation to this asserted error is not specific. It simply raises a question as to whether the aggregate sentence is manifestly inadequate. It was submitted that "the starting point sentence of 17 years imprisonment was appropriate, notwithstanding the seriousness of the offences committed by the respondent".

7. [234]

   Jeffreys DCJ adverted to the principle of totality (ROS 37.8). The question is whether there was error in the manner in which he exercised his discretion in applying the principle. In these circumstances, it is appropriate to proceed to consider the overarching question, whether the aggregate sentence is manifestly inadequate.

Objective seriousness of the offences

1. [235]

   Before turning to the critical issue it is necessary to deal with the issue of the objective seriousness of the offences. Generally speaking, it is open to this Court when dealing with a Crown appeal against sentence to make its own assessment of the objective seriousness of the offences: Carroll v The Queen [2009] HCA 13; 254 ALR 379 at [24]. In this particular case it is mandated because of the failure of the primary judge to do so.

2. [236]

   In relation to each of the offences it is appropriate to take into account that the respondent, knowing of his sexual urges towards children of both sexes, took advantage of the fact that they frequented his home. He conceded in his evidence (somewhat begrudgingly – "what am I going to do, fill in the swimming pool?") that he knew his home was attractive to children with its facilities including a tennis court, swimming pool, spa and computer games. He preyed upon his victims in this context.

3. [237]

   Section 66EA provides that it is an offence to engage in conduct with a child that constitutes a sexual offence on three or more separate occasions during any period of time. A "sexual offence" includes offences of aggravated indecent assault (s 61M), sexual intercourse with a child aged between 10 and 14 (s 66C(1)) and sexual intercourse with a child aged between 14 and 16 (s 66C(3)). The conduct need not be of the same nature nor constitute the same offence. It is immaterial if some of the offences were committed outside of the State. It is unnecessary for the prosecution to specify or to prove the dates or the exact circumstances of the various occasions on which the conduct constituting sexual offence occurred.

4. [238]

   The maximum penalty for an offence against s 66EA is imprisonment for 25 years.

5. [239]

   It has been said that an offence against s 66EA is more serious than the offences which comprise the individual acts: Langbein v R [2008] NSWCCA 38; 181 A Crim R 378 at [115] (McClellan CJ at CL). However, it also has been accepted that there is "nothing … to suggest that the Parliament intended sentencing for a course of conduct that had crystallised into a s 66EA conviction to be more harsh than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences”: R v Fitzgerald [2004] NSWCCA 5; 59 NSWLR 493 at 503 [13]; R v Manners [2004] NSWCCA 181 at [21].

6. [240]

   The agreed facts for this offence particularised a number of offences of aggravated indecent assault and sexual intercourse committed by the respondent against Victim 2 in the 5-year period from January 2003 to December 2007 when Victim 2 was aged 10 to 14 years' old. They are described above (at [13]-[20]). There were multiple occasions of indecent assaults and a progression to fellatio and anal intercourse. There were four instances of the respondent showing pornography to Victim 2 as a prequel to his sexual acts. The particularised offences (eight offences against s 61M(2) and seven against s 66C (two being attempts)) were not isolated incidents; it was an agreed fact that indecent assaults and oral sex occurred on many other occasions.

7. [241]

   As noted earlier, the sentencing judge was not satisfied beyond reasonable doubt that there was "grooming" behaviour by the respondent. It was an agreed fact that he befriended Victim 2 and afforded him the opportunity to enjoy the facilities at his home: computer games, the spa and swimming pool. He gave Victim 2 money for performing odd jobs and gave him small gifts, soft drinks and lollies. He took him away to Canberra to watch a rugby game from a corporate box and took him on a trip to gather oysters on the Bega River. This was activity engaged in by a man in his late 40's – early 50's in relation to a boy aged 10 to 14. Even if there might be doubt about whether this was grooming behaviour, it remains a serious aspect of the offending that the respondent engendered a comfortable and generous relationship with the young boy and sexually violated him in that context.

8. [242]

   Having regard to these features I am satisfied that the concession made by the respondent’s counsel in the District Court and maintained in this Court that the objective seriousness of this offence was above the middle of the range was appropriate. I would consider it to be comfortably above that level but I also accept counsel's submission that it was not "at or near the top of the range".

9. [243]

   The actual character of the assault, including the degree of physical contact involved, is of considerable significance in assessing the objective seriousness of indecent assaults against children: Corby v R [2010] NSWCCA 146 at [72] (Johnson J).

10. [244]

    As an example of how this Court has regarded the seriousness of an offence against s 61M(2), constituted by an adult touching a child's genitalia, in GSH v R; R v GSH [2009] NSWCCA 214, Latham J observed that "it is difficult to justify a finding below the mid-range for an offence under s 61M(2) constituted by the touching of the genitalia of a nine year old girl". Contrary to the finding of the primary judge, her Honour assessed the offence as "well above the mid-range, although not in the worst category" (at [59]). It involved the offender asking the child, a visitor to his home, to sit on his lap and when she did so he touched her on the outside of her vagina.

11. [245]

    Other matters bearing upon the assessment may include the age difference between the perpetrator and the child (Corby v R at [77]). The age of the child relative to the range encompassed by the offence is also relevant - "the younger the child the more serious the offence": R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [42] (Latham J); RJA v R at [13] (Spigelman CJ).

12. [246]

    The aggravated indecent assault offences in the first indictment involved (except in the case of Count 9) skin on skin touching of children's genitalia and/or buttocks. In the context of an offence with an age range up to (but not including) 16, the ages of the children and the activity involved were:

13. [247]

    Counsel for the respondent submitted that the offences in counts 1, 3, 5, 6, 8 and 9 were "serious but below the middle of the range of objective seriousness". The submissions included that the offences were "opportunistic" and there was no "grooming". The offence in count 4 was said to be of low objective seriousness but the submissions incorrectly describe the offence as involving a "touching" of the child's bottom and do not mention that the child was aged 8-9. The offence in count 10 was submitted to be "below the middle of the range" but no reason was given for why that should be so.

14. [248]

    I would regard each of the offences as being considerably serious examples of their type and the more so the younger the victim. The offence in count 7 was more serious as well because it involved stroking the boy's penis and speaking of a desire to perform fellatio in the future although I do not accept that it was at a greater level of seriousness that the indicative sentence of 3 years compared to the indicative sentences of 9 or 12 months for the other indecent assault offences would indicate. The offence in count 8 was more serious because it involved more than just touching.

15. [249]

    The aggravated indecent assault offences in the second indictment occurred in the context of a relationship engendered by the respondent. It was part of the agreed facts that he welcomed the boy to use the facilities at his home and a relationship developed in which Victim 9, who was 15 years' old, looked upon him as a father figure and role model. Count 1 involved the respondent sitting the child on his lap with his erect penis pressing against the child's back. The Form 1 offence in relation to count 1 involved pulling Victim 9’s swimmers down in the spa and rubbing his erect penis against the boy's buttocks whilst groaning. Count 2 involved the respondent masturbating the boy's penis.

16. [250]

    Counsel for the respondent submitted in the District Court that the objective seriousness of these offences "would not exceed the middle of the range". In this Court it was submitted that the offence in count 1 was "below the middle of the range" and the offence in count 2 was "significantly more serious".

17. [251]

    Although the victim was at the upper end of the age range for this offence, the activity involved was particularly serious and they were not isolated incidents. In my view, the offence in count 1 was of middle range seriousness and I agree that the offence in count 2 was comparatively worse.

18. [252]

    The nature of the sexual intercourse is very relevant to the assessment of objective seriousness although there is no rigid hierarchy of seriousness of different forms of intercourse: R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at [97]. However in sentencing in sexual assault cases, generally the form of intercourse is not determinative; it is necessary to look at all of the relevant circumstances: Simpson v R [2014] NSWCCA 23 at [30].

19. [253]

    The maximum penalty for an offence of aggravated sexual intercourse with a child aged 14 to 16 is imprisonment for 12 years. The circumstance of aggravation was that the victim was under the authority of the respondent (the offence occurred in his home).

20. [254]

    These two offences in counts 3 and 4 of the second indictment concerning Victim 9 occurred in the context of the relationship I have described above and were preceded by indecent assaults "on most occasions" the pair were in the spa together. Counts 3 and 4 comprised acts of fellatio and anal intercourse inflicted during the one incident. The latter lasted some 5 minutes and only stopped when Victim 9 complained of the pain. This was not an isolated incident, it being agreed that oral and anal intercourse occurred on a number of other occasions.

21. [255]

    Counsel for the respondent submitted in the District Court that "the objective seriousness would not exceed the middle of the range". I agree with the Crown's submission in this Court that the s 66C(4) offences "are very serious examples of their kind".

22. [256]

    To understand the seriousness with which Parliament recognises offences involving acts of indecency it is necessary to look at both s 61N and s 61O.

23. [257]

    Section 61N provides for act of indecency offences with maximum penalties of 2 years if the victim is under the age of 16 and 1 year 6 months if the victim is of or above that age.

24. [258]

    Section 61O(1) provides for an aggravated act of indecency offence against a person under the age of 16. The circumstances of aggravation are either that the offender is in the company of another person or persons; the victim is under the authority of the offender; the victim has a serious physical disability; or the victim has a cognitive impairment. The maximum penalty is imprisonment for 5 years. Section 61O(1A) provides for such an offence but in relation to a victim who is of or above the age of 16 and the maximum penalty is 3 years.

25. [259]

    Section 61O(2) provides for an act of indecency offence with a maximum penalty of 7 years where the victim is under the age of 10. No circumstance of aggravation is required.

26. [260]

    Section 61O(2A) provides for an aggravated form of the s 61O(2) offence, the aggravation being that the offender knows that the act is being filmed for the purpose of producing child abuse material. The maximum penalty is 10 years.

27. [261]

    From this review it may be seen that Parliament has regarded an act of indecency offence involving a child under 10 as considerably more serious than offences involving persons of a greater age.

28. [262]

    The offence involving Victim 8 in count 10 of the first indictment involved the respondent approaching an 8-year old visitor to his home who was playing with toys in an area well away from the adults. He approached her with his penis exposed and put his hands on her arms and pulled them towards him but she pulled away. It may be inferred that she was sufficiently distressed by the experience to make a complaint to her mother on their journey home.

29. [263]

    Again, this is a particularly serious example of an offence of its type.

Submissions

1. [264]

   The Crown's submissions in relation to the indicative sentences for each offence included reference to the maximum penalty and, in most cases, the applicable standard non-parole period. These are important guideposts in the assessment of sentence: Muldrock v The Queen at 132 [27].

2. [265]

   It was submitted by the Crown that almost all of the indicative sentences specified by the primary judge were inadequate having regard to the serious nature of the offending.

3. [266]

   It was also submitted that there was some inexplicable (that is, unexplained by the judge) disparity in relation to some of the indicative sentences. For example, the sentence for count 7 was three times greater than the sentences for other aggravated indecent assaults in the first indictment. The first count in the second indictment required a very serious indecent assault to be taken into account yet it had an indicative sentence of only 12 months compared to the 2 years 6 months indicated for the second count in that indictment.

4. [267]

   The Crown also contended that the aggregate sentence failed to reflect the totality of the respondent's criminality to an extent that it was manifestly inadequate and below the range of sentence that could be justly imposed consistently with sentencing standards: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 588 [24]. That criminality included the commission of very serious crimes over a long period of time in circumstances where the respondent constantly found new victims.

5. [268]

   Reference was made to observations made in this Court as to the profound and long-term deleterious effects that child sexual assault offences have upon victims: R v CMB [2014] NSWCCA 5 at [92]. Reference was also made to SW v R [2013] NSWCCA 255 where Johnson J stated (at [52]):

6. [269]

   Submissions for the respondent emphasised the favourable findings made by the sentencing judge in relation to his subjective case (they are included in the summary of the sentencing judgment above at [122]). It was contended that these findings permitted a degree of leniency.

7. [270]

   It was submitted that in the light of these findings, "the starting point sentence of 17 years imprisonment was appropriate". I interpolate that the judge did not adopt such a "starting point". He reduced each of the indicative sentences by 25 per cent before then considering what the aggregate term should be having regard to the principle of totality. It would have been erroneous to proceed in the reverse fashion so as to arrive at an aggregate term and then apply the discount for the pleas of guilty: SHR v R [2014] NSWCCA 94 at [35]-[43].

8. [271]

   The submissions also cited authorities in which there is a discussion of "individualised justice", "the application of a degree of mercy", and "leniency [being extended] to encourage reform". For example, in Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483 at 494 [27] the High Court said:

9. [272]

   It is important, in my view, to note that the Court immediately went on to speak of the need for judges to "act in accordance with statutory and any applicable common law principles and in a manner that is consonant with reasonable consistency" and referred to a statement by Gleeson CJ in Wong v The Queen [2001] HCA 64; 207 CLR 584 at 591 [6] that included:

10. [273]

    In oral submissions it was accepted that the sentence appeared on its face to be a relatively lenient one. However, it was contended that various subjective factors rendered this case "very different from almost all other cases involving the sentencing of persons guilty of child sexual assault offences". For this reason, so-called comparable cases were not comparable at all. Moreover, it was submitted that this was a case in which there was justification for giving less weight to general and specific deterrence and the protection of the community and more weight to rehabilitation.

11. [274]

    Counsel referred to certain statements made by McHugh J in Ryan v The Queen [2001] HCA 21; 206 CLR 267 in relation to the sentencing of paedophiles. His Honour only engaged with the issue because of certain statements made by Kirby and Callinan JJ in their judgments. It is important to note that in concluding his judgment, McHugh J said (at 285 [56]):

Determination

1. [275]

   The Crown devoted effort to submissions as to the asserted inadequacy of indicative sentences. Of course, the appeal is primarily concerned with the aggregate sentence. In JM v R [2014] NSWCCA 297 I discussed the relevance of indicative sentences in an appeal that is concerned with an aggregate sentence. The following propositions (at [40]) are presently relevant:

2. [276]

   The submissions for the respondent about this case justifying less weight being given to general and specific deterrence and the protection of the community and more weight to rehabilitation is problematic in that it remains unknown whether that was an approach taken by the primary judge. His Honour quoted such matters as being part of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act but said nothing about how significant he found any of them.

3. [277]

   A summary of "comparative cases" was annexed to the written submissions for the Crown. Counsel for the respondent replied by providing written "Notes on Appellant's Summary of Cases". Neither party made any submissions about any of the cases except that for the respondent it was submitted that this case was unique and so no case was comparable. In the result, there was no suggestion on behalf of either party that there was a range of comparable sentences that would bear upon the assessment of sentence in this case. In those circumstances, the assessment should be based upon general sentencing principles with regard to the guideposts of the maximum penalties and standard non-parole periods provided by Parliament.

4. [278]

   Counsel accepted in oral submissions that there were flaws in the sentencing judgment such that it came down to this Court making its own determination of what the sentence should be and then comparing that with what was imposed. The question was said to be: "is the difference so great that no reasonable judge sitting at first instance could properly, in accordance with all the relevant principles, even though he hasn't articulated everything, come to the conclusion that he did?" In my assessment, the answer to that question is in the affirmative.

5. [279]

   I have come to the view that both the aggregate sentence of 13 years as well as the non-parole period of 7 years are manifestly inadequate in the sense that they are unreasonably and plainly unjust. A significantly higher assessment was required in order for there to be a sentence that was proportionate to the objective gravity of the offences. The sentence imposed completely fails the first purpose of sentencing (s 3A(a) of the Crimes (Sentencing Procedure) Act), namely to ensure the respondent is adequately punished for his predatory sexual abuse of 9 children in a period exceeding 10 years. It also fails to sufficiently denounce his conduct and to recognise the considerable harm he has caused (s 3A(f) and (g)).

6. [280]

   True it is that there were a number of significant matters in the respondent's subjective case that called for not inconsiderable mitigation. But giving due recognition to those matters cannot be allowed to prevail over the well-established sentencing principle described by Spigelman CJ in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15]:

Residual discretion

1. [281]

   The Crown (which bears the onus on this issue) submitted that there was no specific matter (e.g. delay, progress towards rehabilitation) that would militate against intervention. Counsel for the respondent did not contend otherwise. The Crown also submitted that the interests of justice called for the imposition of an appropriate sentence, particularly having regard to the offences having been committed against multiple victims: R v Gommeson [2014] NSWCCA 159 at [124].

2. [282]

   Counsel for the respondent submitted, by reference to R v MF [2015] NSWCCA 283, that even if this Court were to conclude that the sentence was manifestly inadequate it was "not so lenient as to constitute an affront to justice such that intervention is necessary". That quotation was taken from the judgment of Bathurst CJ at [4]. It was immediately preceded by his Honour saying that the sentence in question might be considered "somewhat lenient". (R v MF was a case in which the sentence was not found to be manifestly inadequate.)

3. [283]

   In my view, the sentence imposed by Jeffreys DCJ is such an affront to the administration of justice that interference is justified in order to maintain adequate standards of punishment for offences of this kind.

Exercise of the sentencing discretion afresh

1. [284]

   I have previously indicated my view as to the seriousness of the offences (see above at [237]-[263]).

2. [285]

   A number of subjective mitigating factors legitimately identified by the primary judge should be brought to bear on the assessment of sentence. In this regard I have in mind the 25 per cent reduction of sentence for each individual offence on account of the respondent's early pleas of guilty. I also have in mind his otherwise prior good character (I agree that the 1981 indecent exposure offence is too removed in time to have significance). His charitable and other community engagements are significant matters.

3. [286]

   No submissions were made as to whether or not s 21A(5A) of the Crimes (Sentencing Procedure) Act, which prohibits good character and a lack of previous convictions being taken into account in child sexual assault cases, should apply. It applies if either of those factors was of assistance to the offender in committing the offences. Arguably it does apply but the situation is not entirely clear and in the absence of the Crown raising it I would not apply it. I bear in mind, however, that good character is of less significance in cases such as this involving repeated sexual offending against children over a lengthy period of time: see, for example, PGM v R [2008] NSWCCA 172; 187 A Crim R 152 at [43]-[44]; Dousha v R [2008] NSWCCA 263 at [49].

4. [287]

   I am prepared to accept that, to a degree, the respondent is remorseful. His early guilty pleas, entered before a brief of evidence was compiled and served and his prompt seeking out of psychiatric treatment for his paedophilic condition are significant matters. The manner in which he gave evidence in the sentence proceedings (arrogance and belligerence is apparent even from the transcript e.g. “What am I going to do, fill in the swimming pool?”), and the acceptance by his counsel in this Court that he sought to understate the seriousness of some of his offences, points in the opposite direction.

5. [288]

   The finding by the primary judge that there are "reasonable" prospects of rehabilitation should be maintained. The qualifier to this is, as his Honour stated, "whilst ever he is on that treatment". (It was common ground that the respondent had continued treatment whilst in prison.)

6. [289]

   I am not prepared to accept that the condition of ADHD (assuming the respondent has it) reduces his moral culpability for the offences or justifies any reduction in the weight to be given to general deterrence. He is a very intelligent man who was a highly successful businessman. He acknowledged in his evidence that he knew what he was doing was wrong and against the law. Yet he repeatedly offended against different children for years. If his offending was at all impulsive, which I doubt, he continually allowed himself to be presented with opportunities, and on many occasions sought out opportunities, to offend.

7. [290]

   The difficulties the respondent's wife has experienced and his anxiety in relation to it should be taken into account.

8. [291]

   I am not prepared to find that there are special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole period. There is a significant purpose in the respondent being supervised in the community when released on parole and that is to ensure that he maintains treatment directed to minimising the risk of further offending. However, the potential period of parole incorporated by a sentence that is framed in the usual statutory proportions will be more than adequate for that purpose. Mr Van Ryn is a mature and intelligent man who claims to understand the link between him maintaining treatment and reduction of his risk of reoffending. He should not need to have a parole officer looking over his shoulder for a greater period of time to ensure he is doing what needs to be done.

Indicative sentences

1. [292]

   Pursuant to s 53A(2)(b), I propose the following sentences as those that would have been imposed if the Court did not proceed to impose an aggregate sentence. Each has been reduced by 25 per cent (with some rounding for practical purposes) on account of the utilitarian value of the early pleas of guilty. Additional offences have been taken into account in relation counts 4 and 7 on the first indictment and count 1 on the second indictment.

Orders

1. [293]

   I propose the following orders: