Director of Public Prosecutions v Bales

[2022] VCC 183

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01249

DIRECTOR OF PUBLIC PROSECUTIONS

v

TED BALES (formerly Edward Vernon Dowlan)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 February 2022
CASE MAY BE CITED AS:	DPP v Bales
MEDIUM NEUTRAL CITATION:	[2022] VCC 183

REASONS FOR SENTENCE

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Subject:   Criminal Law

Catchwords:

Legislation Cited:   Sex Offenders Registration Act2004 (Vic), Sentencing Act 1991 (Vic)

Cases Cited: R v Dowlan [1998] 1 VR 123; DPP v Bales [2015] VSCA 261; CGT v The Queen (No 2); R v Merrett, Piggtlt and Ferrari (2001) 14 VR 392, 399 - 403; R v MWH [2001] VSCA 196; Bromley v The Queen [2018] VSCA 329; Mill v R (1988) 166 CLR 59.

Sentence:   90 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Donaghy
For the Accused	Mr A. Croxford

HIS HONOUR:

1Ted Bales, you have pleaded guilty to nine charges of committing an indecent assault on a male person. This offending carries a maximum of five years' imprisonment for each offence. You have also pleaded guilty to 24 charges of indecent assault. This offending also carries a maximum penalty of five years' imprisonment for each offence.

2You have no prior convictions, but you have been sentenced to periods of imprisonment for other sexual offending arising from your vocation as a Catholic Christian brother and teacher. You are currently serving a period of imprisonment which is due to expire on 27 February 2023. I shall explain the relevance of these other matters to the sentencing exercise later in these remarks.

Circumstances of Offending 

3You were born Edward Vernon Dowlan on 4 January 1950. Your offending spanned a 17 year period from the time you were aged 21 to 38.

4Your offending commenced in the first term of your first year of teaching, after teacher training in 1971, and continued until 1988. Much of your offending occurred in the teacher/student relationship or in your role as a boarding house supervisor. The offending against one boy, David Clancy,[1] arose when you preyed on him when he attended a school event as the brother of a boarder. Another crime was committed against a boy in the guise of you staying over at their family home as a friend. The last of your offending against another boy, Howard Dyt,[2]  occurred when you continued a relationship (including sexual activity) with him after he was no longer a student at the school where you taught. 

[1]A Pseudonym.

[2]A Pseudonym.

5You committed all of your crimes of sexual offending whilst you were a member of the religious order known as the Christian Brothers.

6The Crown tendered a summary prosecution opening to plea as Exhibit A.  Given the number of offences you committed, I intend to only summarise them very briefly.

7Charge 1 was committed between 2 February 1971 to 7 May 1971; that is, in the first term of your first teaching position after finishing teacher training college. The charge of indecent assault upon a male was committed against Michael Kennedy,[3] who was then aged about eight or nine and attending St Alipius Boys' Primary School in Ballarat. In the context of providing discipline and then comfort, you took him in class to a partitioned area of the room where you struck him with a strap, then hugged him and rubbed his genitals over his clothing. This became a regular event (which was led only as context) and you told him not to tell his parents.

[3]A Pseudonym.

8Charge 2 was committed between 1 February 1972 to 5 May 1972. It is a charge of indecent assault upon a male person against Dylan Jacobs,[4] aged about 11 or 12.  Mr Jacobs states that he was cautious of your temper and he was regularly disciplined. In class, you crouched down next to his desk, whispered to him and rubbed his groin and genitals over his shorts. This offending occurred at  St Thomas More College in Forest Hill.

[4]A Pseudonym.

9Charge 3 of indecent assault on a male person occurred between 4 February 1973 to 19 December 1973 against David Clancy, who was then aged 11 or 12.  Although he attended St Alipius Boys' Primary School in Ballarat where you taught, the assault occurred at his brother's school St Patrick’s, which he attended for a movie night. When his brother left the projection room, you rubbed David Clancy’s chest, groin and genitals over his clothing.

10Charge 4 occurred between 4 February 1974 to 26 February 1974. It is a charge of indecent assault upon a male against Nate Berry,[5] then aged 12 at St Patrick’s College Ballarat. You were the dormitory master and you touched his penis over his pyjamas.

[5]A Pseudonym.

11Charge 5 occurred between 4 February 1974 to 19 December 1974. It is a charge of indecent assault upon a male person committed against Austin Dyer,[6] aged 12, at St Patrick’s College Ballarat. This is a rolled up charge comprising two acts. The first act committed was rubbing your hands over his body and kissing his head, saying that you wished to ‘display some love’.  The second act is that you rubbed your hand over his bare chest, back and legs, whilst kissing him on the head and neck.

[6]A Pseudonym.

12Charge 6 occurred between 9 September 1974 and 19 December 1974. It is an indecent assault upon a male person, Lucas Craig,[7] aged about 14 at St Patrick’s College Ballarat. Whilst you were dormitory master, you woke Mr Craig, took him to your room where you pulled down his shorts and underpants, stroked his penis and rubbed his testicles for about 10 seconds.

[7]A Pseudonym.

13Charge 7 occurred between 3 February 1975 to 9 May 1975. It is a charge of indecent assault upon a male, Jordan Kelly,[8] aged about 13, at Christian Brothers College Warrnambool. This is a rolled up charge of four acts. In the first act, you pushed your erect penis against his body. In the second act, you grabbed his buttocks and pulled him towards you and against your erect penis. In the third act, you pressed your erect penis against his body in a class room. In the fourth act, you grabbed his buttocks and put your hand near his anus over his clothing and pulled him towards you.

[8]A Pseudonym.

14Charge 8 occurred between 2 February 1976 to 16 December 1976. It is a charge of indecent assault upon a male, Lachlan Collins,[9] aged 11 or 12, at the Christian Brothers College Warrnambool. On the school sports trip, you grabbed his buttocks and placed your finger on his anus over his clothing.

[9]A Pseudonym.

15Charge 9 occurred between 2 February 1976 to 7 May 1976. It is a charge of indecent assault upon a male person, Paul Robinson,[10] aged 12, at the Christian Brothers College Warrnambool. This is a rolled up charge comprising two acts. On the first occasion, you knelt in class beside Mr Robinson, placed your hand inside his trousers and underpants and patted and rested your hand on his buttocks. On the second occasion in class, you did the same, sliding your hand down inside his pants and touched his buttocks.

[10]A Pseudonym.

16Charge 10 occurred between 1 June 1981 to 17 December 1981. It is a charge of indecent assault against William Baker,[11] aged 12 or 13, at Parade College Alphington. You used discipline and punishment as a pretext to commit sexual assault. In class, you took Mr Baker down the back of the class, struck his thigh and buttocks area with your hand, and then moved your hand to his buttocks and grabbed hold of it in a cupping motion. You squeezed his buttocks and put your fingers between his buttock cheeks, with your fingers near his anus. You left your hand there for some time, continued to grip his buttocks and then loosened your grip.

[11]A Pseudonym.

17Charge 11 occurred between 1 June 1981 to 17 December 1981. It is a charge of indecent assault against Peter Boyd,[12] then aged about 13 at Parade College Alphington. This is a rolled up charge comprising two acts. Whilst disciplining Mr Boyd in class, you stood behind him, grabbing each forearm and pushed your body up against him so he could feel your erect penis pushing hard against his buttocks. On the second occasion, you disciplined Mr Boyd, then comforted him by pulling him towards you and pressed yourself hard up against his body so he could feel your erect penis against his stomach.

[12]A Pseudonym.

18Charge 12 occurred between 2 February 1982 to 16 December 1982. It is a charge of indecent assault against John Sellings,[13] then aged about 12, at Cathedral College East Melbourne. This is a rolled up charge comprising three acts. On three separate occasions, after purporting to discipline Mr Sellings, you moved to comfort him and on those three occasions, you touched his penis and testicles over his clothing.

[13]A Pseudonym.

19Charge 13 occurred between 2 February 1983 to 16 December 1983.  It is a charge of indecent assault committed against Richard Smith,[14] aged about 12 or 13, at Cathedral College East Melbourne. It is a rolled up charge comprising nine acts. Seven of the acts involved grabbing Mr Smith and rubbing his buttocks over his clothes. Two of the acts involved rubbing his groin and thigh over his shorts.

[14]A Pseudonym.

20The next 4 charges of indecent assault were committed against Barry Hargraves[15] when he was aged about 11 or 12 at Cathedral College East Melbourne.

[15]A Pseudonym.

21Charge 14 occurred between 24 May 1982 to 6 May 1983. It is a rolled up charge of indecent assault comprising two acts of rubbing and Mr Hargraves' back and buttocks over his clothing.

22Charge 15 is a rolled up charge of indecent assault comprising four acts that occurred between 1 February 1983 to 15 December 1983. The first act you committed was to rub Mr Hargraves’ buttocks over his clothing. The second act was to rub Mr Hargraves’ buttocks over his clothing and kissing his forehead. The third act was to push your erect penis against Mr Hargraves’ body and the fourth act was to place your hands inside his underpants and use your fingers to touch his anus.

23Charge 16 is a rolled up charge comprising two acts of indecent assault which occurred between 1 February 1983 to 15 December 1983. The first act comprised of putting your hand inside Mr Hargraves’ underpants and touching his buttocks and anus. The second act was rubbing your erect penis against Mr Hargrave’s.

24Charge 17 is a charge of indecent assault that occurred between 1 February 1983 to 15 December 1983. You placed Mr Hargraves’ hand on your erect penis.

25Charge 18 occurred between 1 February 1983 to 4 November 1983. It is a charge of indecent assault against Dean Hart,[16] then aged 12. Although he was a student at Cathedral College East Melbourne, this criminal offending did not occur in the school setting. In the guise of you being a family friend, you stayed overnight in the family home. When you were heading to bed, you put your hand under Mr Hart’s pyjamas and felt his buttocks and anus.

[16]A Pseudonym.

26Charges 19 and 20 were committed against Oliver Sharp.[17] Charge 19 is a rolled up charge of indecent assault comprising two acts that occurred between 1 February 1983 to 15 December 1983. Whilst you were teaching at Cathedral College East Melbourne, you used the pretext of discipline to approach Mr Sharp. You then placed your hands on his buttocks, and rubbed and caressed them. The second act comprised of resting your hands on, and rubbing his buttocks.

[17]A Pseudonym.

27Charge 20 is a rolled up charge comprising two acts. In the first act, you pulled down Mr Sharp's pants and underpants and caressed his buttocks. The second act comprised of fondling his bare genitals.

28Charges 21 to 25 were all committed against Jackson Dunkley[18] between 31 January 1984 to 18 December 1984 at Cathedral College. Charge 21 is a rolled up charge of indecent assault comprising two acts of using discipline as a pretext and then pressing your erect penis against him.

[18]A Pseudonym.

29Charge 22 is a rolled up charge of indecent assault comprising three acts: first, you hugged him and pressed your erect penis into him; second, you struck him under the guise of discipline and then rubbed his bare buttocks. The third act was to press your erect penis into him.

30Charge 23 is a rolled up charge of indecent assault comprising two acts. First, you held Mr Dunkley’s buttocks and then gyrated against him with your erect penis. The second act comprised of disciplining Mr Dunkley and then feeling his buttocks and pressing your erect penis into him. Cruelly, you told Mr Dunkley that his parents did not love him because they had separated; but that you loved him.

31Charge 24 is a rolled up charge of indecent assault comprising three acts that occurred between 31 January 1984 to 18 December 1984. In the first act, you grabbed his bare buttock. In the second act, after disciplining him, you grabbed his penis and rubbed it over his clothing. Again, you told him that his parents did not love him and that you could do what you wanted. The third act comprised you pushing your erect penis against him.

32Charge 25 is a rolled up charge of indecent assault comprising four acts that occurred between 31 January 1984 to 18 December 1984. Whilst on a school camp, in the guise of discipline, you required Mr Dunkley to come out of the dormitory in his underpants. He asked to be allowed to go to the toilet, and you watched him urinate. You then pulled him towards you and grabbed his buttocks. In the second act, you put your hand inside his underpants and rubbed his erect penis. For the third act, you directed him to masturbate you. The fourth act comprised you touching his anus and telling him ‘I love you’.

33Charge 26 comprises a rolled up charge of four acts of indecent assault committed against Graeme Fraser[19] between 31 January 1984 to 18 December 1984 at Cathedral College in East Melbourne. In the guise of disciplining them, you directed a number of students into the corners of a classroom and told them not to turn around. You approached Mr Fraser. In the first act, you pulled down his shorts and underwear and exposed his buttocks. In the second act, you rubbed his buttocks. In the third act, you rubbed his penis and in the fourth act, you guided his hand onto your exposed erect penis.

[19]A Pseudonym.

34Charge 27 is a rolled up charge of indecent assault comprising two acts committed between 9 September 1985 to 18 December 1986. In the first act, you fondled Mr Fraser’s penis over his clothing. In the second act, you fondled his exposed penis and told him that this was ‘your little secret’.

35The final six charges are all crimes committed against Howard Dyt between February 1985 and December 1988. As I mentioned earlier, your criminal offending against Mr Dyt extended beyond your time as his teacher at Cathedral College.

36It is necessary to give some brief background to your offending against this boy. The Dyt family befriended a terminally ill resident of Gordon House, which provided shelter to the homeless. Mr Dyt was upset when this man died. When Mr Dyt returned to school, you used the guise of providing him with sympathy to sexually assault him.

37Charge 28 is a rolled up charge of indecent assault comprising three acts that occurred between 4 February 1985 to 19 December 1985 when Mr Dyt returned to school. You took him down to the back of the class where you usually disciplined students. You whispered words of comfort to him and then asked him, ‘do you love Brother?’ You put your hands inside his trousers and underpants, and rubbed his bare buttocks. The second act was that as you did this, you kissed Mr Dyt gently on the face. The third act was with your hand inside his clothing and underpants, you touched his anus.

38Charge 29 is a rolled up charge comprising three acts of indecent assault which occurred between 27 May 1985 to 23 August 1985. After sports, you went into the shower and changing room on the pretense of instructing the boys on how to shower and dry themselves ‘hygienically’. In the first act, you towelled and dried Mr Dyt’s genitals. In the second act, you rubbed his penis with a towel. In the third act you rubbed Mr Dyt’s testicles and then his buttocks, and rubbed around his anus.

39Charge 30 is a rolled up charge of indecent assault comprising three acts that occurred between 1 September 1985 to 30 September 1985. A student held a birthday party and you drove a number of the boys to the party in a minibus. The first act occurred while you were driving when you rubbed Mr Dyt’s thigh over his trousers. The second act occurred when you fondled his genitals over his clothes. The third act occurred during the party games when you pressed your erect penis against his buttocks.

40Mr Dyt left the school but you remained on friendly terms with his family.

41Charge 31 is a rolled up charge comprising four acts of indecent assault which occurred between 3 February 1986 to 18 December 1986. The first act occurred in the spa at the family home when you put your hand in Mr Dyt’s pants and fondled his genitals. The second act occurred at Anglesea when you rubbed Mr Dyt’s buttocks over your clothing, asking ‘do you love Brother?’ The third act occurred when you pressed your erect penis against him. The fourth act occurred when you stated ‘you loved’ Howard Dyt and you kissed his face.

42Charge 32 is a rolled up charge comprising two acts of indecent assault which occurred between 27 March 1987 to 28 August 1988, when Mr Dyt was staying with you in Geelong. In the first act, you kissed Mr Dyt goodnight and stated ‘I love you’. The second act was committed when you put your hand inside his pants and felt his testicles.

43Charge 33 is a charge of indecent assault which occurred between 4 February 1988 to 22 December 1988 at Nathalia. You kissed Mr Dyt good night, and you rubbed his testicles and penis.

44You were remanded in custody for different offending on 9 October 2014. You have remained in custody ever since.

45The complainants who are the subject of this offending made statements against you between 9 June 2016 to 11 March 2021.

46You did not participate in a Record of Interview as you were undergoing a sentence.

47The filing hearing for the current charges was heard on 11 December 2020.

48Pleas of guilty were entered in the Magistrates' Court on 11 June 2021 and the matter was set down for plea. After hearing the submissions of your counsel, Ms Franjic and prosecuting counsel, Mr Sonnet, I am satisfied that your plea of guilty was made at the earliest time and, notwithstanding your lack of remorse, that the plea of guilty in this matter facilitates the course of justice. I will (as I must) take these factors into account in mitigating your sentence.

49I turn now to consider the objective gravity of, and your moral culpability for, your offending.

50The maximum penalty for each of the offences on the indictment is five years' imprisonment. Notwithstanding that the maximum penalty has increased over the years, I must sentence you according to the maximum penalty as it was at the time of your offending.

51Charges 5, 7, 9, 11 to 16 and 19 to 32 are rolled up charges for the purposes of sentencing.  A rolled up charge is constituted by identifiable single instances of offending.  When sentencing on a rolled-up charge, the court must consider all of the circumstances of the offence and the offender, including if the offending was carried out over an extended period, whether it victimised multiple persons and the totality of harm described in the charge.  While I may consider all of the relevant circumstances of a rolled-up charge, the plea of guilty must still be treated as entered to a single formal charge.  The maximum penalty is therefore limited to the maximum for the single charge.

52You are to be sentenced as a serious sexual offender. I must declare that you are sentenced as a serious sexual offender and cause that to be noted on the records of the court. The relevant consequences of noting you to be a serious sexual offender are as follows: First, I must regard the protection of the community as the dominant sentencing factor. Second, if necessary to achieve this, I may impose a disproportionate sentence on you. Third, there is, using shorthand, a presumption of cumulation of sentences as opposed to a presumption of concurrency.

53The Crown does not seek a disproportionate sentence to be imposed in this case. I do not intend to impose a disproportionate sentence.

54Impact statements were filed by the complainants of your offending. I will not refer to those young boys, now men, who assaulted as victims. They deserve more than such a label. The impact statements were read in court by some of them, and some by the prosecutor. Others were read by me alone. Individually and together, those statements were powerful and moving.

55The statements make it perfectly obvious that you have inflicted on them, individually and collectively, a lifetime of damage and misery. It is apparent that those young boys still suffer from the trauma of your actions throughout their adulthoods. Some have attempted suicide. Many speak of the emotional and psychological problems that have plagued their lives. They speak of feeling depressed, unable to sleep and feeling worthless. Most have required counselling or treatment.  Some speak of their difficulties with relationships and with employment. Some with reasonable employment records spoke of the ceiling or barrier that they felt in place because they could not deal robustly with their colleagues and fellow employees. Others spoke of problems plaguing them and cheating them out of a life they felt they could have had. A number of these men spoke of their problems with drugs and alcohol.

56I note at this point that you have expressed no empathy; let alone remorse, for your actions and your impact on their lives.

57Whilst the criminal law identifies more serious crimes of sexual offending, and the experience of this court is that there are many more serious examples of sexual offending, your crimes are nonetheless very serious. The two hallmarks of your status as a teacher and as a Christian Brother meant that those children, their parents and those around you were entitled to trust you to care, protect, comfort and nurture those in your charge. Instead, you exploited both of your positions of trust for a very long period of time, some 17 years; and you did so from the very outset of your teaching career.

58The sustained and total breach of trust demonstrated by your offending adds to the seriousness of the crimes you committed.

59I also note the manner in which much of the offending was committed. You purported to impose discipline upon those young boys. Indeed, the so-called discipline was then often mixed with comfort and then sexual assault. The Prosecution Opening often refers to the boys’ fear of you and the fact that you used your maturity and position to get what you wanted. At times, you mixed in confusing elements of expressions of love and questioned whether they loved ‘Brother’.

60Your moral culpability for your offending is high – you were the sole instigator, your offending was sustained, prolific and exploitative. You offended against some boys, especially Richard Smith and Barry Hargraves, on multiple occasions.

61Your offending is to be utterly deplored.  The law prohibits sexual offending against children for the inequality of the relationship between the adult and child. The law recognises and presumes harm to the children. The impact statements which form part of the case in these proceedings makes it utterly clear: the harm you caused to the boys you sexually exploited is not to be presumed; it is actual, lifelong and significant.

62Your offending, for its breach of the trust reposed in you as a teacher and as a Christian Brother, must be met by principles of deterrence and denunciation. Your offending must be met by condign punishment.

Personal circumstances

63I have read the sentencing remarks of Her Honour Judge Curtain dated 9 July 1996 and His Honour Judge Smith dated 27 March 2015.  Those sentencing remarks both refer to your personal circumstances.

64I do not intend to set out those circumstances for a third time; especially as these sentencing remarks will likely be read with those of Judge Curtain and Judge Smith by anyone who wants to make sense of your overall offending.

65I note however that you stopped working as a teacher in 1993, and have not worked in paid employment since. You have worked as a volunteer with prisoner groups. It was accepted by Judge Smith in his sentencing remarks that you have made a significant commitment in time and effort to assisting former prisoners to reintegrate into society.

66I note that you are now aged 72. Besides being of an advanced age, you are otherwise relatively healthy. You had a pacemaker fitted a few years ago.  You have high cholesterol, and you have long suffered from anxiety and depression.

Subsequent Convictions

67You have no prior convictions. However, you have two subsequent convictions:

·R v Dowlan [1998] 1 VR 123. You were convicted on 14 February 1997 and resentenced by the Court of Appeal to 6 years 6 months' imprisonment with a non-parole period of four years in respect of 12 charges of indecent assault upon a male person and four charges of indecent assault.

·DPP v Bales [2015] VSCA 261. You were convicted on 18 September 2015 and resentenced by the Court of Appeal to a term of eight years and five months' imprisonment with a non-parole period of five years eight months in respect of 12 charges of indecent assault upon a male person and four charges of indecent assault.

68The law requires principles of deterrence, denunciation and just punishment to dominate the sentencing consideration. In your case, as you are sentenced as a serious sexual offender, the protection of the community becomes the dominant sentencing consideration in relation to the charges to which it applies.

Sentencing Submissions

69Ms Franjic submitted the following factors should operate to mitigate your sentence:

·First, the plea of guilty was entered at the earliest opportunity;

·Second, there is your advanced age. As you age, your health will decline, which will make imprisonment more burdensome for you. There is also a real possibility that you will die in goal, which warrants an ‘appropriate degree of mercy in sentencing him , so as not to effectively extinguish his hopes of a life (of some sort) after release’.[20] Your advanced age is also relevant to your rehabilitation and risk of re-offending.

·Delay and rehabilitation. You committed these offences decades ago. Delay is relevant to assessing your rehabilitation prospects.[21] Your advanced age and circumstances for the foreseeable future make re-offending highly (if not absolutely) unlikely.[22] Further, the victim statements were made over the period of five years, and the delay in charging you has deprived you of the opportunity of further concurrency.

·COVID-19. Your advanced age and deteriorating physical health mean that you are particularly vulnerable to COVID-19. You are enduring imprisonment much more acutely than younger and healthier prisoners.

[20] CGT v The Queen (No 2) [2012] VSCA 23.

[21]R v Merrett, Piggtlt and Ferrari (2001) 14 VR 392, 399 - 403; R v MWH [2001] VSCA 196, [17] - [18].

[22]Bromley v The Queen [2018] VSCA 329.

70I do take into consideration that your time in custody has been affected by the COVID-19 lockdowns.  The immediate effect of any lockdown is a reduction and suspension of vocational and personal improvement courses, restriction on your ability to move around the prison, a severe reduction in work available and a suspension of all visits. 

71The other more insidious effect of the pandemic and lockdowns is the stress caused to you and the isolation - that is the fear that the pandemic would penetrate into the prison system, and so isolation has been used by prison authorities as a strategy to limit close contact. 

72I shall take this into account as a mitigating factor the sentencing process.

73Ms Franjic acknowledged that the offences committed by you are very serious and warrant a term of imprisonment. However, she submitted that the sentence I impose on you should be lower than the sentence imposed by the Court of Appeal in 2015, having regard to the operation of totality; the lower total criminality of this offending; and your advanced age. Ms Franjic submitted that the relevant sentencing principles can be met by the imposition of a term of imprisonment that is wholly concurrent with the remainder of the sentence that you are currently serving.

74Mr Sonnet, who appeared on behalf of the Crown, submitted the following:

·First, pre-meditation. You engineered situations in order to perpetrate the offences.

·Secondly, that your moral culpability is high. Sexual gratification was the dominant operative factor in your offending.

·Third, your guilty plea. The Crown accepts the plea was entered at an early stage and that your plea has a utilitarian value, it was entered during a pandemic environment and it facilitates the administration of justice.  I likewise accept all three of those factors flow from a plea of guilty.

·Remorse. Notwithstanding the plea of guilty, the Crown does not accept the offender is genuinely remorseful.

·The Crown accepts that you are otherwise of good character.

·There has been some little delay but the matters were otherwise prosecuted with alacrity.

·And made further submissions in relation to your advanced age and COVID-19.

75As I stated previously, the Crown does not seek, and I shall not impose a disproportionate sentence.

76In my view, your prospects for rehabilitation are assisted by:

·First, the length of time since you last offended;

·Second, the setting in which you offended (as a teacher, dormitory master and Christian Brother with access to young and teen aged boys) is no longer available to you;

·Third, your advanced age, and the fact that you will not be released from prison yet;

·And fourth, the good work you have done in assisting other prisoners

77In the end, I consider that your age and the lack of opportunity presented by your previous occupation make it almost certain that you will not offend again. 

78Your prospects for your rehabilitation are nevertheless constrained by the fact that you have no, and never have expressed, any remorse for your offending. 

79I will take into account the submissions in mitigation made on your behalf by Ms Franjic. You will appreciate however that the matters personal to you have only a limited influence in the sentencing consideration.  The objective factors I have outlined must dominate the sentencing consideration. Nevertheless, I have taken into account the matters raised on your behalf to the extent that I may.

80Of course, I must have regard to and apply the principle of totality. I conclude that:

·First, I should look at the offending as part of an ongoing course of conduct;

·Second, that you have previously been sentenced to an ‘overall’ sentence (if I can use that term) of 14 years 11 months, with an non-parole period of nine years and eight months; and

·Third, that your offending was committed during the period 1971 to 1988, against 50 different boys.

81As the High Court[23] stated:

…the court must not content itself by doing arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all of the offences.

[23]Mill v R (1988) 166 CLR 59, 63

82I adopt the submission made by Mr Sonnet that this requires me to

stand back and impose a sentence that, when combined with the 1997 sentence and the 2015 sentence appropriately reflects the overall criminality of the offender.

83I have decided on the following approach in order to ensure the appropriate totality of sentence is achieved: I shall impose near to appropriate sentences on each of the charges. In other words, I do not intend to greatly moderate the individual sentences. I have decided that this course is necessary, given the high number of rolled up charges. The sentences must reflect your criminality.  Having said that, the sentences can only be‘near to appropriate’. The large number of charges, together with the considerations of totality and the factors personal to you mean that I must moderate some sentences, or there would be no room for cumulation between those sentences.

84After that, I will moderate the periods of cumulation considerably, and I will make an order for concurrency (as the presumption of concurrency has been displaced).  It will strike those who watch these proceedings and who may later read these sentencing remarks that there is a high degree of artificiality in the periods of cumulation.  Nevertheless, by these means I seek to achieve a sentence, which, when seen in light of your first period of imprisonment served in 1997, and the sentence of 2015 which you are still undergoing, is not simply an arithmetical addition, but in fact reflects this offending as a component of your overall criminality.

Sentence & Orders

85The sentences I impose are as follows:

No	Charge	Sentence	Cumulation
1	Indecent Assault Upon a Male Person	14 months	2 months
2	Indecent Assault Upon a Male Person	12 months	1 month
3	Indecent Assault Upon a Male Person	12 months	2 months
4	Indecent Assault Upon a Male Person	14 months	2 months
5	Indecent Assault Upon a Male Person (rolled up)	14 months	2 months
6	Indecent Assault Upon a Male Person	18 months	2 months
7	Indecent Assault Upon a Male Person (rolled up)	18 months	2 months
8	Indecent Assault Upon a Male Person	12 months	1 month
9	Indecent Assault Upon a Male Person (rolled up)	14 months	2 months
10	Indecent Assault	15 months	2 months
11	Indecent Assault (rolled up)	14 months	2 months
12	Indecent Assault (rolled up)	18 months	2 months
13	Indecent Assault (rolled up x 9)	24 months	3 months
14	Indecent Assault (rolled up)	14 months	1 month
15	Indecent Assault (rolled up)	22 months	2 months
16	Indecent Assault (rolled up)	20 months	2 months
17	Indecent Assault	27 months	3 months
18	Indecent Assault	20 months	2 months
19	Indecent Assault (rolled up)	14 months	1 month
20	Indecent Assault (rolled up)	24 months	2 months
21	Indecent Assault (rolled up)	14 months	1 month
22	Indecent Assault (rolled up)	18 months	2 months
23	Indecent Assault (rolled up)	20 months	2 months
24	Indecent Assault (rolled up)	21 months	2 months
25	Indecent Assault (rolled up)	30 months	Base
26	Indecent Assault (rolled up)	30 months	3 months
27	Indecent Assault (rolled up)	24 months	2 months
28	Indecent Assault (rolled up)	20 months	2 months
29	Indecent Assault (rolled up)	24 months	2 months
30	Indecent Assault (rolled up)	20 months	2 months
31	Indecent Assault (rolled up)	24 months	2 months
32	Indecent Assault (rolled up)	18 months	1 month
33	Indecent Assault	18 months	1 month

86The sentence I impose commences today. In other words, I make an order that this sentence runs concurrently with the sentence you are currently undergoing. I make the order in this fashion, for as I previously said, the declaration that you are a serious sexual offender otherwise displaces the presumption of concurrency.

87After your conviction and sentence of imprisonment on all charges, you are to be sentenced as a serious sexual offender pursuant to Part 2 of the Sentencing Act 1991. I cause this fact to be noted on the records of the court.

88You are subject to mandatory reporting pursuant to s 34 of the Sex Offenders Registration Act 2004 for a period of life (all charges are ‘class 2’).

89Mr Donaghy, is there anything I have missed or anything you need to raise or anything I should clarify?

90MR DONAGHY:  No, thank you, Your Honour.

91HIS HONOUR:  Thank you, Mr Croxford?

92MR CROXFORD:  No, Your Honour, thank you.

93HIS HONOUR:  To all of the then boys, now men and their families that were participating in the proceedings today, I again commend you for your courage and integrity in coming forward and making what has been a very public bearing of your souls and your life experience.  I cannot imagine the courage it takes to do so and I wish each and every one of you well for the future.

94I do give you this, that when the matter is reported, your names will be anonymised and when the matter is finally posted, my sentencing remarks will be published and available on the various legal websites and your names will be anonymised during that so you have nothing to worry about there.

95If there is nothing else I will now stand down.

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