AB [Peter Wayne Graham Scott] v R (No 2)

BATHURST CJ: I agree with the orders proposed by Hoeben CJ at CL and with his Honour's reasons.

HOEBEN CJ at CL:

After the three trials, the appellant was found guilty of a total of 14 counts (now 13) of sexual assault and supplying stupefying drugs to five young boys, through his association with them as a teacher at their school, between 1984 and 1986. The counts comprised the following:

The indicative sentences imposed by her Honour totalled in excess of 35 years.

By proceedings in this Court (AB v R [2015] NSWCCA 315) the appellant appealed against his conviction in respect of four counts relating to offences against GM. His appeal against conviction in three of those counts was dismissed, but he was successful in respect of count 6 on the first indictment, being a conviction for the offence of homosexual intercourse with GM who was then above the age of 10 years but under the age of 18 years, namely 15 years, contrary to s 78K Crimes Act 1900. The indicative sentence imposed for this offence was 3 years.

Because the appellant was successful in relation to his conviction for this offence, it is necessary for him to be re-sentenced. Accordingly, when judgment was handed down in the primary appeal, the parties were directed to provide written submissions on re-sentence. Those of the appellant were received on 1 February 2016 and those of the Crown on 15 February 2016. This judgment relates to the re-sentence of the appellant.

The appellant was born on 13 November 1950 and was aged 63 when sentenced. He had been in a relationship with his de facto wife for 32 years and had one daughter born in 1986. Before these offences, he was a person of good character and her Honour found that his prospects of future offending were low.

It is clear from the indicative sentences and from the aggregate sentence actually imposed, that there was a considerable amount of concurrency involved in the sentences. Nevertheless, it is accepted, as was submitted on behalf of the appellant, that the quashing of the conviction for count 6 on the first indictment should result in a genuine and not merely symbolic reduction in the aggregate sentence.

However, in re-sentencing it needs to be kept in mind that the counts involving GM (the first indictment) and SS (the second indictment) were found by her Honour not to be isolated incidents of the sexual and drug offences committed by the appellant against those boys, thereby depriving him of leniency. Her Honour found beyond reasonable doubt that the offences committed against those two victims were aggravated due to the substantial harm caused to them as disclosed by their Victim Impact Statements (sentence judgment 20-21).

It should be noted that GM was older when the events in count 6 took place than in the earlier counts on indictment one and was also generally older by comparison with the other victims.

It should be noted that the appellant was convicted of the offences in each case following a trial and that an unchallenged finding was made by her Honour that there was no evidence of remorse or contrition.

By reference of the whole of her Honour’s sentence judgment, it is not possible to discern the weight which her Honour gave to particular offences or individual indicative sentences in arriving at the aggregate sentence and non-parole period she imposed. It can, however, be inferred that each indicative sentence was notionally reduced substantially.

Seven of the fourteen indicative sentences were greater than that indicated in respect of count 6 on the first indictment. This demonstrated, as did the description of the offences themselves, that the offence the subject of count 6 was in the mid range of seriousness in the list of the appellant’s offences. In making that observation, I am of course mindful of the fact that because this Court has to re-sentence, it is necessary for the Court to approach the sentencing of the appellant afresh. Since her Honour’s finding of special circumstances has not been challenged, it is also necessary to have regard to that when re-sentencing.

The orders which I propose are as follows:

RS HULME AJ: I agree with Hoeben CJ at CL.