Director of Public Prosecutions v Allen (a pseudonym)

[2014] VCC 637

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS ALLEN (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 April 2014
CASE MAY BE CITED AS:	DPP v Allen (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2014] VCC 637

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For Accused ALLEN	Mr R. Willcox

HER HONOUR: 

1Thomas Allen[1], you have pleaded guilty before me to five charges of indecent assault on a male.  The facts underlying your offending are as follows:

[1] A pseudonym

2At the time of these offences you were the vicar of St Phillip's Anglican Church in West Heidelberg.  The offences occurred at the vicarage, your home at the time.  The first complainant was 'A', aged 12 to 15 at the time of this offending, which occurred between 1 March 1973 and 1 October 1976.  He used to come to the church with friends to play table tennis or basketball in a back room there.  At the end of playing table tennis or basketball you would offer 'A' and his friends a cold drink in the lounge room of the vicarage.  At first you offered 'A' soft drink but later you offered him beer and red wine.  You would sit with 'A' and talk and joke with him and his friends while serving them alcohol and then would offer him and his friends cigarettes.

3Charge 1, indecent assault upon a male, occurred on an occasion between the dates I have outlined, when he woke up in the lounge room of the vicarage alone with you, his penis outside his underpants and the rest of his clothing in disarray.  It is the prosecution case that you had been fondling 'A's penis.  This is a representative charge.  That is, it encompasses similar occasions, incidents occurring on about six occasions during the relevant period.  It is the prosecution case that the wine and alcohol that you served 'A' operated as a soporific.  That is, it caused the victim to fall asleep and to be more readily sexually assaulted by you.

4

Charge 2 relates to an incident between the 17 June 1975 and

1 October 1976, when 'A' went to the vicarage after playing table tennis and was offered red wine by you, 'A' believing he had one or two glasses of wine and then fell asleep in the lounge room.  He woke up feeling a sharp pain in his anus and found himself lying on a couch with his buttocks in the air, his shorts having been removed and he had been naked from the waist down. 

5HER HONOUR:  He saw you standing behind him naked from the waist down with your pants around your ankles.  The prosecution concedes it cannot prove beyond reasonable doubt either that penetration occurred, or if it did, with which part of your body or with what object this occurred.  You said something to 'A' like "It will be okay.  It will be fine" and "Sorry, everything will be okay". 

6The second complainant, 'B', was aged 16 at the time of the offending.  His family were parishioners at St Phillip's and he was an altar boy at the parish when he was around 11 or 12-years-old.  He attended at the lounge room of the vicarage on a number of occasions before the offending, and at which time he was offered beer and wine by you.  He describes you as a touchy feeling and a man who did things like pat him on the head and saying to him "Nice boy". 

7On 23 October 1976, when 'B' was 16, he went to visit you with a number of friends.  You gave beer to 'B' in the lounge room at the vicarage.  'B' then started to play a game of hide and seek with his friends and you and was hiding behind a couch or chair, when he felt a forceful jab directed straight up into his anus over his clothing.  He then saw that you were holding a length of wood that he believed to be small broom or shovel.  He did not confront you about what you had done but got straight up from his hiding place, told the other boys he was with that he was leaving. 

8He got extremely embarrassed by your actions and never had any further contact with you after this incident.  These actions underlie Charge 3 on the indictment; indecent assault upon a male. 

9The third complainant, 'C', was aged between 12 and 13 at the time of the offending.  'C' was introduced in April 1976 to you by another youth when he was 12.  He would go to the vicarage with other boys and be offered biscuits, cigarettes and alcohol by you.  After going there for about three or four months, you would send the other boy off to another room. 

10Towards the end of 1976, in about October or November, you took 'C' to your office and closed the door and started kissing him on the neck, and then placed your hands inside C's pants and put on of your hands on his penis.  You kept one of your hands on C's penis until it became erect and then stopped touching 'C' and said "Oh my conscience".  After this incident 'C' was allowed to drive your car up and down the church driveway. 

11This charge is representative of similar conduct which occurred on a regular basis during this time, sometimes as often as three to four times a week.  This underlies Charge 4 on the indictment; indecent assault upon a male, which is said to be a representative count of incidents occurring between 1 June 1976 and 31 August 1977. 

12'C' continued to attend the vicarage about three to four times a week until the end of the 1976 school year.  In early 1977, sometime between January and April, 'C' was sitting in the kitchen area of the vicarage with you when you started kissing him, then undid his pants and began fondling his penis.  You leant down and took C's penis in your mouth and sucked and had oral sex with 'C' for about five minutes before stopping and stating the words "Oh my conscience".  This charge is representative of another three or four occasions which took place over the next five weeks or so and underlies Charge 5 on the indictment; a representative charge of indecent assault upon a male.

13'C' reported the offending against him in July 2001 to police and was mistakenly informed that you had died.  In 2001 you made further enquiries and discovered you might still be alive, and then reported further details of your offending against him in October 2010.  Complainant A reported the offending against him in January 2012, after he was made aware there was to be a police investigation into your activities.  On 8 January 2012 'A' telephoned you trying to elicit admissions but you made no admissions and denied any sexual offending against children. 

14

Complainant B reported the offending against him in late 2011, as a result of police contacting him.  You were arrested on 28 March 2012 but in a record of interview denied any sexual offending against children.  A plea was ultimately entered in this matter just prior to trial, which had been listed for hearing on

17 March this year. 

15I now turn to your personal circumstances.  You are 88 years of age.  You are the oldest of three children born to your parents.  One sister has died, another in her eighties is in a nursing home in Kerang.  Both your sisters married and had children.  Your father ran a hardware store in Bendigo, he is now deceased, and your mother had the occupation of home duties.  You grew up, your counsel informed me, in a loving home where strictness was enforced, as it was in most homes of that era.  But apparently was not excessive in this case and you enjoyed, by all accounts, a happy childhood.

16You were educated to intermediate or Year 10 standard at Bendigo High School and worked for a year with your father, after leaving school at 16, for a 12 month period.  You then studied theology at Ridley College for three years, this diploma course being funded by your parents.  You had trouble passing one particular subject and were unable to be ordained until you passed it, but in the meantime worked in a lay capacity at the Mission For Seamen in Melbourne.  In the meantime, you were tutored in that subject, finally passed and were placed on a Deaconship, a 12 months apprenticeship, before being finally ordained.

17You then spent five and a half years working with the Mission for Seamen, and then were sent to St Pauls' Cathedral in Melbourne, where you worked for three years as a presenter, or administrative assistant, to the Dean of the cathedral.  There you played the organ and piano and assisted with the choir. 

18In 1954 you were given a mission in London as a residential chaplain, where you stayed for two and a half years.  In late 1956 you were sent to Africa to establish a mission there which involved you obtaining and managing your own passage on a ship.  You worked your way there as an assistant bursar and on arrival at Cape Town were paid for by a local rotary group for passage to Walter's Bay, now known as Namibia.  There you raised funds and constructed a church and stayed on as the vicar there for four and a half years.  That church and parish, I understand, is still operating. 

19You returned to Australia where you became the vicar of Inverleigh, near Geelong, for four years.  In 1964, against your wishes, you were returned to the Mission for Seamen as senior chaplain, which work you undertook for a four year period.  You then spent seven and a half years as vicar in a Brunswick parish, being requested to stay on for more than the normal period of three years by your parishioners. 

20From 1975 to 1979 you were vicar at St Phillip's Anglican Church in West Heidelberg, where the offending occurred.  From 1979 to 1985 you were vicar in a Balwyn parish, then suffering in 1985 a heart attack.  After sick leave you were given the parish of Rochester, where you stayed until your retirement in 1990.  You worked on a semi-retired basis for a period of eight years but have been completely retired for the past six years. 

21You reside at a housing commission unit in Bendigo which you rarely leave.  I received a report from your general practitioner as to your general health.  You suffer a number of physical infirmities.  You suffer from ischemic heart disease, congestive cardiac failure, you wear angina patches.  You have hypertension, diabetes and osteoarthritis.  You have ambulatory difficulties and get around with the aid of a walking stick or a wheeling frame.  You take a large number of medications which were listed by Dr Moller. 

22In Dr Moller's report he stated that over the last 18 months your general health slowly declined.  Your balance is poor, you tend to leave the house infrequently, have had several falls and report deteriorating eyesight and general weakness.  Overall, Mr Moller stated that you are still living independently but are quite frail.  And investigation by a psychologist, Dr Simon Kennedy, found that intellectually you are amongst the top percentile of cognitive ability in the community but do suffer from long-term memory difficulties. 

23The immediate consequence for you, insofar as this offending is concerned, is that your licence to be a priest has been revoked by the Anglican Church.  Every bishop and archbishop in Australia has been told of this offending and you have been placed in the national register of the Anglican Church as a sexual offender.  This, I'm informed, is a great sorrow to you.  Be that as it may, your impact on the lives of your victims has been disastrous and overwhelming. 

24I was presented with a victim impact statement from each of A, B and C.  To say that the consequences of your offending make for heart wrenching reading, is an understatement.  Each of your victims has suffered with a deep sense of anger and frustration.  Two of the victims have gone on to end up engaging in criminal behaviour, struggling with lifelong feelings of worthlessness, of depression, of unending, agonising reflections as to what their lives might have been had you not offended against them in the way that you did. 

25The impact of sexual offending upon children is only slowly being recognised by our community.  May I say that the courts unfortunately are far better informed.  And I say 'unfortunately' because it is never easy hearing the terrible consequences of sexual offending upon people decades after that offending in fact occurred.  The daily struggles of grief, despair, hopelessness, depression, loss, the fight against pessimism, the struggle to remain strong and optimistic, the struggle to recover.  The daily heartbreaking battle suffered by so many victims of sexual abuse are very evident in the victim impact statements that I received.

26One can only hope that in some small way the resolution of these matters and these proceedings can give some sense of closure and comfort to the victims who have had the courage to approach police to relive these appalling memories and to engage in the difficult process of court proceedings.  That of course is unlikely.  It is likely that their struggle will go on.  It certainly does seem to me that the immense strength that has been shown by your victims will ultimately stand them in good stead.  But as I have said, the impact that sexual offending against children has is invasive, long-lasting and deeply tragic for those involved. 

27I made the comment during the plea, and I make it now, that these courts have also become aware over time of the results of the ruinous practice, largely by the Catholic Church, of recruiting adolescent boys to lifelong service and vows involving vows of celibacy.  This has application in your case as well, Mr Allen.  It appears that joined an organisation within the Anglican Church, now thankfully defunct, called the Order of the Holy Ghost, which involved you undertaking a vow of celibacy. 

28It is less than coincidence that men shackled, if you like, for life, in their own minds, to a mode of living which involves an unnatural suppression of sexual desires, then engage in this perverted form of sexual activity, in search of some sort of sexual satisfaction.  In any event, as I have said, it was a ruinous practice and the price has largely been paid by the hundreds, if not thousands of children, who have been the subject of clerical sexual abuse.  And unfortunately, Mr Allen, you fall in the category of one of that number of predators.

29In any event, ordinarily had this matter proceeded when you were younger, when you were less frail, I would not have hesitated to gaol you.  It is extremely important that the community understand the ruinous effects of sexual abuse upon children.  This community pays a very, very high price in terms of ruined lives, dashed hopes, psychological dysfunction for the sexual offending of children that has gone on unrecognised, undetected for so many years.  And whilst there might be greater recognition of it now, it is still quite evident that this is a crime that is still widespread in the community and continuing to cause the widespread damage that I have just referred to.

30It is basically a crime which blights young lives on a virtually permanent basis and it is a crime in which the courts must play a role of particular vigilance in sending out a message of deterrence, a message of denunciation, a message recognising the damage that is done by way of sentences imposed.  Because of your age, 88, because of the frailty of your condition, which I must accept, it is clear that any term of imprisonment which has an immediate sentence component is virtually a death sentence for you.  And in the circumstances, and only because of the age of this offending, I have acceded to your counsel's request that I deal with you by way of a sentence of imprisonment which will, however, be wholly suspended. 

31Nevertheless, I am satisfied that you carry with you some consequences of your offending, in terms of the revelation of it, the effects upon the vocation or priestly role that you purported to fulfil over so many years and the knowledge that you will leave this court a convicted child sex offender.  In sentencing you, as I have said, I do take into account your advanced age and your illness and general frailty.  I also take into account the positive references I have received from you, from an assisting bishop and from a general practitioner who have known you for many years and spoke of the valuable work you carried out in a pastoral sense in the years you were practicing as a vicar.

32Could you stand up please?  In sentencing you I also take into account your plea of guilty which has a strong utilitarian value.  It is unfortunately very rare for offenders such as yourself to enter a plea of guilty at any stage.  And, of course, the failure to enter a plea of guilty means that victims of sexual abuse are obliged in a fairly nightmarish fashion to relive their sufferings and to undergo the appalling experience of having that experience challenged as a matter of truth.  You have spared your victims that and this is another reason why I have decided that I should not proceed to make you actively serve any part of the sentence I am about to impose upon you.

33On Charge 1, you are sentenced to two years' imprisonment. 

34On Charge 2, you are sentenced to nine months' imprisonment.

35On Charge 3, you are sentenced to nine months' imprisonment. 

36On Charge 4, you are sentenced to two years' imprisonment.

37On Charge 5 you are sentenced to two years' imprisonment.

38I order that one month of the sentences imposed on Charges 2 and 3, and five months of the sentences imposed on Charges 4 and 5, be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of three years.  I order that this sentence be wholly suspended for a period of three years.  What that means, Mr Allen, is that you will not have to serve any term of imprisonment.  But if you commit any offence punishable by imprisonment in the next three years, you will be brought back before me on a breach of suspended sentence.  And unless there are exceptional circumstances attached to your offending, I must make you serve all or part of that sentence.  Have a seat sir. 

39Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of five years and order that you serve a minimum term of three years. 

40Now, s.464ZF application?  You said you wanted me to serve - do you want to pursue that, Mr Cordy?

41MR CORDY:  My instructions are to pursue it, Your Honour.

42HER HONOUR:  All right.  Have you got the forms?  What do you say about that?

43MR WILLCOX:  Well Your Honour, I doubt whether that would be of any benefit to the community or not at this stage?

44HER HONOUR:  Look, it seems a bit of a meaningless exercise, I have to say, Mr Cordy.  Only because that material was meant to be added to the data.

45MR CORDY:  I understand that, Your Honour.  I also understand that s.464 orders are aimed at recidivism.  The application was simply made on the basis of seriousness of the offence but Your Honour is at large to refuse it. 

46HER HONOUR:  Yes, thank you.  I am going to refuse it, not because of anything that in any way undermines my view of the offending.  It just seems to me to be, in light of the accused's age and health, a meaningless gesture really. 

47MR CORDY:  If Your Honour pleases.

48HER HONOUR:  All right.  Is there anything else that I need to attend to?

49MR CORDY:  Sex Offenders Registry.

50HER HONOUR:  Yes.  Mr Allen will be placed on the Sex Offenders Register for life.  I will sign that.  And the conditions of the Register will be explained to you by your counsel.

51MR CORDY:  There's one further matter, Your Honour. 

52HER HONOUR:  Yes.

53MR CORDY:  And that is that Your Honour is required to state on the court record that the sentence on Charges 4 ‑ ‑ ‑

54HER HONOUR:  Three, four and ‑ ‑ ‑

55MR CORDY:  Three, four and five, the accused was sentenced as a serious sexual offender.

56HER HONOUR:  Yes, I make that declaration.  On Charges 3, 4 and 5 Mr Allen is sentenced as a serious sexual offender.  Thank you very much.

57MR CORDY:  If Your Honour pleases.

58HER HONOUR:  Is that everything?

59MR CORDY:  That's all, yes Your Honour.

60HER HONOUR:  Thank you.  I thank you for your assistance Mr Willcox and Mr Cordy, as always.

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