Director of Public Prosecutions v Claffey
[2016] VCC 1438
•4 October 2016
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| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT PATRICK CLAFFEY |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 19 September 2016 | |
DATE OF SENTENCE: | 4 October 2016 | |
CASE MAY BE CITED AS: | DPP v Claffey | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1438 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K. J. Doyle | OPP |
| For the Accused | Mr D. G. Wraith | Vine Lawyers |
HER HONOUR:
1 In August 1969 you, Robert Claffey, were ordained a Catholic priest. Within 9 months of ordination, you were performing your priestly duties as curate at St Thomas, Terang. It was there, less than 12 months after your ordination, that you anally penetrated Elizabeth Fielding,[1] a 7year old girl. In the discharge of your pastoral duties, you were preparing for her first communion. You were conducting a religious instruction class at her school. You took her into a store room, and touched her genitals, then bent her over and anally penetrated her. You told her not to tell her mother as it would kill her. With that threat, you secured her silence.
[1] Elizabeth Fielding is a pseudonym.
2 This marks the beginning of a shameful and protracted abuse of your position of authority as an ordained priest, God’s representative on earth, over children and their parents, to whom you were supposed to be providing pastoral care and which brings you before the court today to be sentenced on 19 charges, involving the sexual abuse of 12 children, boys and girls, between 1969 and 1992.
3 Charge 1 is the act of anal penetration of Elizabeth Fielding at Terang. Back then such conduct was described in the Crimes Act as buggery.
4 By 1974, you were attached to the parish of St Joseph’s in Warrnambool and your duties included being in charge of the altar boys. Thirteen year old Cameron Dodd[2] was an altar boy. You developed a habit of dropping into his family’s home at bedtime and going into his room to say goodnight.
[2]Cameron Dodd is a pseudonym.
5 Charge 2 is a charge of indecent assault, occurring on such an occasion, when you went into his bedroom after he had gone to bed, tickled him, straddled him, fondled his penis under his pyjama pants and rubbed your erect penis against him.
6 Charge 3 is another charge of indecent assault, when Cameron Dodd was 14 or 15, and still an altar boy. This time, the pretext for getting him on his own was to discuss his altar boy duties. On this occasion you tickled Cameron Dodd, undid his clothing, touched, then masturbated his naked penis and rubbed your penis against his genitals and into the cleft of his buttocks. All the while, he was trying to get away.
7 Charge 4 is the final charge of indecent assault involving Cameron Dodd, in late 1976, when he was 15. You came to the home when Cameron Dodd and his younger brother were home alone one evening while the rest of the family were at a school function. Cameron Dodd was doing his homework. You began to tickle him. He told you to stop but you continued. He tried to get away. There was a struggle, in the course of which the desk was pushed over, you pulled at his clothing, grabbed his legs and tripped him over, pulled his pants off, and then tried to pull his underpants off as you lay on top of him and rubbed your erect penis against his genitals. Cameron Dodd managed to push you off, and threatened to tell his parents and to kill you if you did it again. You left the house and Cameron Dodd never saw you again.
8 By 1977 you had been transferred to Apollo Bay as parish priest of Star of the Sea Parish. Twelve year old Owen Gunn[3] was an altar boy at Star of the Sea. Again, as with Cameron Dodd and his family, you developed the habit of dropping in on the family. One night, Owen Gunn was left at home alone while the rest of the family attended the annual football club ball. You arrived almost as soon as the rest of the family had left. You sat beside him and began to touch him on the knee, leg, back and buttocks. This gives rise to Charge 5, indecent assault. He moved away, and told you to leave. He left the room. You followed him. He armed himself with a cricket bat and again demanded you leave. You continued to walk towards him. He swung at you, but missed, and you continued to advance on him. He swung again. This time he didn’t miss and was successful in making you leave. As his victim impact statement makes clear, you were not the first paedophile priest to have sexually assaulted him.
[3] Owen Gunn is a pseudonym.
9 Charges 6 and 7 also involve a boy you came across when you were parish priest at Star of the Sea in Apollo Bay. Unlike the other children to whom these charges relate, 8 year old Zachary Fitchett[4] and his family were not parishioners. You met him after providing pastoral care to his mother when she was hospitalised with a serious illness. You visited her at home on her discharge. On the second occasion you visited the family Zachary Fitchett had already gone to bed. You went into the bedroom, pulled down the bedding and his pyjamas, and held him by the ankles with one hand whilst grabbing and fondling his penis and testicles with the other. You rolled him over, touching, and spreading his buttocks, only stopping when his mother called you to tell you your coffee was ready. That gives rise to Charge 6 of indecent assault.
[4] Zachary Fitchett is a pseudonym.
10 Charge 7 is a further charge of indecent assault, occurring a year or more later, when Zachary Fitchett was 9 or 10. Again, you went into his bedroom where he was in bed, pulled his pants down to expose his penis, and fondled him. You commented on his size.
11 By 1981 you had been transferred from Apollo Bay. You were appointed parish priest at Our Lady Help of Christians at Wendouree. You remained there until 1987. There are 11 charges involving 7 children, 6 boys and one girl which relate to that time.
12 Charge 8 is a charge of indecent assault involving 10 year old Hunter Donald.[5] You began to visit his family. On one occasion you came across Hunter Donald outside the house and began to tickle him. You then lifted him up and grabbed him on the penis. He struggled, and ended up still being held by you and facing you. You grabbed his penis again before putting him down and going inside to have a cup of tea with his mother. About two weeks later, you visited again, and Hunter Donald was outside when you arrived. You tried to grab him, and chased him, lunging at him as he ran away. He managed to get away and again you went inside for a cup of tea with his mother.
[5] Hunter Donald is a pseudonym.
13 Charge 9 concerns Angus Gardener.[6] He was in his early secondary school years. He lived near the OLHC church and school. He was riding his bike in the school grounds one day after school when you emerged from a shed and asked him to help you. He went in, you stood behind him, pulled his pants down, rubbed your erect penis against his buttocks, then with some difficulty and causing considerable pain to him, forcibly penetrated his anus with your penis. You continued to hold and grope him until you ejaculated onto his anus. By then the Crimes Act had been amended, so what was charged as buggery in respect of Elizabeth Fielding, was charged as taking part in an act of sexual penetration of a child under 16.
[6] Angus Gardner is a pseudonym.
14 Charge 10 is a representative charge of indecent assault and concerns Archer Molle.[7] He was 11, and already an altar boy at OLHC, when you came to the parish and took charge of the altar boys. You would put on your vestments in the vestry with them before mass. On one occasion you entered the vestry, grabbed him hard on the buttocks and rubbed and squeezed them. He was too scared to move. This is representative of 3 other specific instances, occurring over a 6 month period. Each time, it was in the vestry, before mass. On the 3 later occasions, you would touch him on the shoulder before sliding your had down to his buttocks. On each occasion, you would then make casual conversation, before you yourself robed, and went onto the altar to say mass.
[7] Archer Molle is a pseudonym.
15 Charge 11 is again a representative charge of indecent assault concerning Logan Gerard.[8] He is the youngest of your victims. He was in Grade 1, so about 5 or 6 at the time. You selected a group of children, boys and girls from OLHC primary school where he was enrolled, and took them to the clergy house. You made them undress, stand naked in a circle and cough. He asked why they had to take their clothes off and you threatened to punish him. You sent the other children back to class but kept him, still naked, with you. You then touched his genitals. When the school bell rang he got dressed and ran back to class. This is representative of a further occasion when you again took him to the clergy house, pulled his pants down and again touched his genitals. Again, it was the school bell ringing that brought the touching to an end.
[8] Logan Gerard is a pseudonym.
16 Charges 12 to 16 all concern a single victim, Lilian Horgan,[9] the second of the female victims. OLHC was her family’s parish church. The offending against her commenced before she turned 10, and continued until she was 15. The first instance she details is an occasion after mass when you were speaking to parishioners, still in your vestments. She and other children were playing hide and seek and you lifted your gown and offered her a hiding place under it. She slipped under and you pushed her face against your groin. This is an uncharged act which precedes the first charge in respect of her, which occurred when she was 10 and was convalescing at home after having had her appendix removed. You asked her if she had been having impure thoughts that might have caused her to become sick, before putting your hand under her bedding and nightgown and digitally penetrating her. It hurt. You then rolled her on to her side, lay on the bed behind her and penetrated her anus with your finger. Again it hurt. You stopped abruptly and left the room. The following day she realised she was bleeding from her bottom. These separate acts of penetration constitute Charges 12 and 13. Back in 1984 these acts of digital penetration of vagina and anus were characterised as the crime of indecent assault. In today’s terms they would be charged as acts of rape, or sexual penetration of a child, in the same way as an act of penile/vaginal penetration would be.
[9] Lilian Horgan is a pseudonym.
17 The following year when Lilian Horgan was 11 she was confirmed. You were invited to a family party at her home to celebrate and mark the occasion. You gave her a small Bible with a mother-of-pearl cover as a gift and told her it was a very special night for her. You then accosted her in her bedroom and again digitally penetrated her. This constitutes Charge 14, another charge of indecent assault.
18 The next charge, Charge 15 is one of sexual penetration of a child. Lilian Horgan was than 14. She had been arguing with her parents and they asked you to speak to her. You came to the house one night when her parents were out dining with another priest. She was home alone. You spoke to her about how she had been showing disrespect to her parents and said you wanted to make her feel better. You went to her bedroom, held her down on her bed with the weight of your body before penetrating her vagina with your penis. It is likely you ejaculated, as she recalls you breathing heavily, and then feeling wetness in her vagina when you had finished. You told her that nobody would believe her if she said anything about what occurred.
19 After the sexual assault on the night of her confirmation, Lilian Horgan had gone to bed and curled herself in a ball. On this night, after you had finished she scrubbed herself with a scrubbing brush in the shower.
20 Later that year you again visited the family home, this time to lead prayers for two police who had been murdered in Melbourne. Again you went to Lilian Horgan’s bedroom and again digitally penetrated her while she was in bed. This is Charge 16, a further charge of indecent assault. The prosecution summary also details a further and later uncharged act, when you had given her a gift, some paints and a canvas and had then started rubbing up her leg. On that occasion you were interrupted because her brother was there and told her to go to bed.
21 Charge 17, of indecent assault, concerns Jeremy Wentworth-Shields.[10] You had contact with him when he was aged between 10 and 12 and he served as an altar boy. Shortly before his 13th birthday his older brother was killed in a road accident. You visited the family to offer condolences or pastoral care. You took him into a room on his own, sat him on your knee, put your arm around him and stroked and caressed him, telling him it was all right to cry. You then began to stroke his inner thigh, tickling him then fondling his penis and testicles until he got off your knee and went to look for his mother.
[10] Jeremy Wentworth-Shields is a pseudonym.
22 Charge 18 is the final charge of indecent assault and concerns Liam Bryant.[11] His mother had asked you to speak to him and his brother about their fighting. You had come to the house for this purpose on a number of occasions. You visited the house one afternoon when Liam Bryant was home alone. You asked him to hop on your lap, put your arms around him and started to kiss him and then touch his penis, initially through his clothes. You then removed his clothing to expose his penis. You commented on its size and his pubic hair.
[11] Liam Bryant is a pseudonym.
23 Liam Bryant’s father arrived home unexpectedly, interrupting you. You immediately left and Liam Bryant, who was visibly distressed, told his father what had happened. His father went to see Bishop Mulkearns, the Bishop of Ballarat, the following day and told him what had happened. A minute signed by Bishop Mulkearns was able to be located. It records the father’s complaint, and an acknowledgement by you in a subsequent meeting with him, that there had been some “impropriety”, as you described it, although you blamed Liam Bryant for initiating it. The minute records Bishop Mulkearns demanded your immediate resignation as parish priest, which you provided.
24 Bishop Mulkearns was compelled to give evidence before the Magistrates’ Court, and submitted to the pre-recording of his evidence in late March this year, in anticipation of your then pending trial. He maintained he had no independent recollection of these events but confirmed that the minute had been signed by him and accorded with his practice of making an accurate and contemporaneous record of certain meetings.
25 Your resignation from OLHC at Wendouree occurred on 8 July 1989. By early 1990 you had been appointed as a priest to the parish of Portland. Your role included visiting the McKillop Primary School. Jackson Edward[12] was a student at the school and knew you as the priest who visited the school. During the 1991/1992 summer holidays, you approached him at the local swimming pool, where he was playing under the supervision of his mother. He was 9 years old. You played with him in the pool and piggybacked him around the pool. Under cover of the play and under water, you touched him on his penis and testicles. He swam away to get away from you. This gives rise to the final charge, charge 19. By then, the law had changed, so what was charged as indecent assault in respect of the other children, was now a charge of indecent act with, or in the presence of a child under 16, and punishable by 10 years imprisonment, not 5 years as is the case for the indecent assault charges.
[12] Jackson Edward is a pseudonym.
26 This is a truly appalling litany of offending against 12 children to whom you stood in a position of trust by reason of your role as a Catholic priest, and as parish priest of the communities in which these children were living with their families. The offending commenced within a year of your ordination, and continued for over 20 years, whilst you performed priestly duties in the various parishes to which you were assigned in the diocese of Ballarat.
27 It is grave and protracted offending. In addition to the sheer number of victims, and the extended period over which it occurred, the absence of consent adds to the gravity of the offending overall. So, too, does the extreme youth of some of your victims. Logan Gerard was only 5 or 6. Elizabeth Fielding and Zachary Fitchett both 7, and Jackson Edward the last of the victims, was 9. A number of the others were still young enough to be in primary school. Even those who were in their early teens were, as their statements and victim impact statements reveal, unsophisticated, unworldly, and typical examples of the conservative rural Catholic communities they came from and you were supposed to be serving.
28 By the time you assaulted Jackson Edward you had served a period of suspension following your admission of improper conduct with Liam Bryant. That also adds to the gravity in respect of him, your last victim. A number of your victims actively resisted, yet you persisted, following them, chasing them, holding them down or otherwise overpowering them. Two were abused in the course of preparing for, or having just been initiated, into the sacraments of communion and confirmation. Elizabeth Fielding was abused as you prepared her for her first communion; Lilian Horgan as you joined her family to celebrate her confirmation. Having abused Archer Molle in the vestry, as you were putting on your vestments and he was putting on his altar boy robes, you walked onto the altar and said mass. Some of your victims, although assaulted somewhere other than the church, were altar boys, over whom you had authority in the discharge of those duties. Angus Gardener was riding his bike in the school grounds, a place that should have been seen as a safe place, with the local priest in attendance, for a child to play. Logan Gerard was taken out of class to the vestry house. Hunter Donald was assaulted when you paid a condolence visit following the unexpected death of his brother. Lilian Horgan, when you were offering prayers for the murdered policemen. The parents of each of Lilian Horgan and Liam Bryant had asked to you to speak, with the authority of the parish priest, to their respective children about their behaviour. The first charged acts concerning Lilian Horgan occurred just days after she had had an appendectomy, and was in bed, recovering. You asked her if she had had impure thoughts before assaulting her. After assaulting a number of the children you would join their parents for a cup of tea.
29 There are some common themes that emerge from the accounts of the victims. There was grooming of children and parents, by visiting the families, playing with the children, and hugging and tickling them, going into their bedrooms to say goodnight. Touching children when others were nearby and then acting as if nothing had happened. Choosing times to visit, once trust had become established, when they were alone. Making threats to the children about the consequences for them if they told anybody. Sexually assaulting children when performing your priestly duties and pursuing and forcing yourself on children over their resistance and protests.
30 But the offending also reveals a wide and diverse range of acts, with children of both sexes, both prepubescent and pubescent. It provides evidence, if evidence is needed, that a paedophilic sexual predator, such as this evidence reveals you are, does not necessarily confine his activities only to boys or only to girls, or only to children who are prepubescent children, or only to pubescent children who are prepubescent, or confine himself to the same pattern of behaviour on every occasion, or to one type of conduct. The evidence in your case reveals a sexual attraction to children, the exploitation of the many apparently legitimate reasons you had for contact with children, a wholesale abuse of your position of trust, treatment of the children as objects to whom you could do whatever you wanted and the absence of any pretence of mutuality, evidenced by persistence over resistance and the use of force and threats.
31 The victim impact statements reveal the very personal and individual responses of your victims. This is just a selection. One victim echoed the words of many when she said that what you did affected her sense of worth and self-confidence, her sense of trust, and instilled in her a deep fear of intimacy. Many spoke of the destruction of faith, of belief in the church, or even in God. The destruction of respect for authority was also a recurrent theme. I read and heard of lives blighted by the impact of the behaviour, of mental illness, substance abuse, self-harm, suicide attempts, relationships with parents and siblings adversely affected, trails of broken relationships and difficulties in parenting, of underachievement academically and in employment. Many spoke of the loss of innocence. One said “I had to deal with things no child should. I dealt with them alone because I felt I did something wrong. That really messes a kid up.” Some, who did make disclosures at the time or when still children, spoke of shame, and ostracism. Some, but not all, could recognise their strength in surviving. I hope that those who are still struggling at present to deal with what happened to them can come to appreciate their strength in being where they are today and to accept that they were not to blame, for what happened to them, or to anybody else.
32 The common themes include the loss of, or struggle with faith, in children who were almost all from families who were devout Catholics, and for whom faith was central to their identities, and for whom devotion to the church and respect for priests was deeply instilled. Victims spoke of their struggles with feeling betrayed by you, the Catholic Church and God himself, of the guilt, shame, self-blame, and fear; fear of not being believed and fear of the consequences of exposure, which had blighted their lives.
33 That you were able to act with impunity for such a period speaks volumes for the power you exerted over your victims and of the gross nature of the breach of trust of a priest in respect of the children in the parish. It speaks volumes about the innocence of the children, and sometimes of their parents, about the enormous respect afforded to the Catholic Church by these families and their trust in the goodness and integrity of those men, who through ordination, were God’s representatives on earth. The circumstances I have recounted, and the content of the victim impact statements, are powerful and distressing testaments to the deep levels of shame, fear and guilt you engendered in your victims and the profound and long-lasting harm caused to them.
34 The materials before me also reveal, in part, the culpable conduct of the Catholic Church, in the Diocese of Ballarat and more broadly. You, of course, must be punished for what you have done to these children, as reflected in these charges, and not for the conduct or inaction of others. The loss of faith in the church as an institution, its priests, bishops and cardinals and even for many of your victims and their families in God himself, is a direct consequence of your conduct, even if others share some responsibility. Faith is a great comfort to many people and you took it from many of your victims and their families, as you took their innocence and their childhoods. But, I make it abundantly clear, you are being punished for these offences and not for the wrongdoings of the church hierarchy. I can only add my voice to those that express hope, that amongst the outcomes of the Victorian Parliamentary Inquiry and the Royal Commission, is the significant moral change necessary for the Catholic Church to put the interests of victims before the interests of the institution. To submit to, indeed to actively cooperate with independent and transparent inquiries into allegations of clerical sexual abuse in future and to the establishment of a redress scheme which provides genuine apologies and a fully funded adequate compensation scheme for all victims.
35 It is clear that subject to considerations personal to you, the needs of denunciation deterrence and just punishment loom large in the sentencing mix. As I have said, this is grave and protracted offending; a gross and profound breach of trust. The consequences for your victims have been profound, and for many, lifelong.
36 Although you have pleaded guilty, you maintained your innocence up until the time of trial. Some of your victims were required to submit to cross-examination by counsel retained on your behalf in a pre-trial hearing. The balance were spared that indignity and ordeal. All victims, whether they were cross-examined in pre-trial hearing or not, had had to prepare themselves for the prospect of having to recount and relive their experiences and to be cross-examined and challenged on their truthfulness and reliability at trial. You are, nonetheless, entitled to a discount in the sentence otherwise appropriate because the victims were ultimately spared the ordeal of having to give evidence at trial and the indignity of having their truthfulness and reliability challenged.
37 There is a significant utilitarian benefit also in your pleas of guilty. Had the matter proceeded to trial, it is highly likely there would have been a number of trials which would have taken many weeks, and cost the community a considerable amount, not just in dollar terms, but also in terms of the impact on those who would have had to have listened to the distressing accounts, which I have summarised so briefly. Many potential jurors were spared the necessity of having to hear such evidence and make a determination as to whether they were satisfied beyond reasonable doubt of your guilt on all or any of the charges.
38 For the vindication of the truthfulness of the victims, for the sparing of them all, the ordeal of giving evidence at trial, and for the sparing of some of them the necessity of giving evidence at a committal or pre-trial hearing, you are entitled to a reduction in your sentence. And, as I said to Mr Wraith during pre-trial discussions, a greater reduction than would normally apply to pleas entered only at the last minute, because of the weight to be given to the vindication of the victims, and the sparing them of that ordeal of trial.
39 Apart from your pleas of guilty, not a word has been said by you, or on your behalf, which is indicative of any remorse for your victims. No apology has been offered to any of them on your behalf. In those circumstances, I do not treat the pleas of guilty as evidence of remorse which would require or justify a further reduction in the sentence otherwise appropriate.
40 You are now 73 years of age. You were a Catholic priest for 25 years. Following your ordination in August 1969, you served as an assistant priest in Terang and Warrnambool, then as parish priest in Apollo Bay and Wendouree. Following the complaint about your conduct by the father of Liam Bryant, which led to your forced resignation as parish priest of Wendouree, you were suspended from priestly duties for 9 months, between 1 July 1989 and 30 March 1990. You were then appointed as assistant to Portland where you remained for 18 months until September 1992. You were laicised, that is, removed from the priesthood in 1984.
41 I was told that following that you moved to Geelong to live with, and as they became frailer, to care for, your parents. Medical reports reveal that by 1995 your father was suffering mobility problems and your mother had been diagnosed in the early stages of aphasic dementia. They died, within a year of each other, in the early 2000’s.
42 You developed an unusual form of glaucoma, which affected your central vision, rendering you unable to read, drive or watch TV, but which left you with sufficient peripheral vision to enable you to maintain mobility with the use of mobility devices. In addition to caring for your parents, you have devoted considerable time and energy to assisting the vision impaired, through involvement with local support groups, as well as serving on disability advisory groups and contributing to the development of policy for the provision of disability services at local, State and national level. Impressive character evidence, both oral and written was provided in relation to your service to the blind and vision impaired community, and to the broader community of people living with disability. As Mr Watson, the president of Blind Citizens Geelong said in his evidence, “The Robert Claffey I’m hearing of is not the Robert Claffey I know". He appeared visibly distressed by what he had heard, and the contrast between what he had seen of you, and the behaviour evidenced by the plea summary.
43 Whilst I do not doubt or devalue the evidence he gave, or that contained in the testimonials, it bears out one of the insidious aspects of sexual abuse of children by adults, especially people in authority, that is, that they can act as they do, in secret, whilst to the outside world, the adult world, they are respected and trusted. It is that trust and respect which gives them access to vulnerable children, the vulnerable children they abuse, and makes it so hard for the children to complain, and to believe their word will be believed, against that of such a respected adult.
44 It is for that reason that good character is of less weight in a case such as this because it is the very good character which allows the offender access, and the opportunity to act as they do, with such a sense of impunity.
45 The thrust of Mr Wraith’s submission was that the sentence should be structured to allow a realistic prospect of a meaningful life in the community at the end of the sentence.
46 It is always difficult when sentencing an older person for offences they committed when they were younger. Their health is often poor and their anticipated remaining years of life relatively short. It is clear that in sentencing an older person it may be appropriate to impose a sentence at the lower end of the range of appropriate sentences so as to allow a prospect for living out one’s final years in the community.[13] However, it does not follow that a sentence should be reduced below what is appropriate, simply because a person who comes to be sentenced is nearing the age of average life expectancy or even their own estimated life expectancy.
[13]R v R L P [2009] VSCA 271.
47 I take into account in your favour your age, your other community contributions, following your relinquishing your priestly responsibilities and privileges, and the devotion you showed to nursing your elderly parents. I take into account that imprisonment will be more onerous for you, by reason of your vision impairment, than it would be for a sighted prisoner.
48 However it remains the case that the predominant sentencing considerations are denunciation, just punishment and deterrence. No adult can think that it is acceptable to sexually abuse a child. When that adult is a respected figure in the community, a person in authority, and a person who, having taken holy orders, has a position of moral and spiritual authority over others, the denunciation of such conduct by society must be vehement, and unequivocal. It must be dealt with by stern punishment. The sentence must stand as a clear and strong deterrent to those who seek to abuse children, and trust, in such a way.
49 Although the last of the offending before me occurred in 1992, there is nothing in the materials before me to indicate that I should temper the weight appropriate to give to specific deterrence. You offended against Jackson Edward after having served a period of suspension, following the exposure of your conduct with Liam Bryant. I have already noted the absence of any evidence of remorse and the late resolution of the matter.
50 Your defence responses filed in the lead up to trial contained specific denials of the conduct. No material has been put before me to suggest that you no longer pose a risk to children. There is nothing to suggest that, were you given access to children again in the way you had in the past, that they would be any safer than the children that you were exposed to during the discharge of your priestly duties. There is no material before me to indicate any diminution in sexual urges or capacity to act on them. Whilst I cannot, and do not make a positive finding that you still pose a risk to children, there is no evidence before me to indicate that you do not. That is the basis on which I find specific deterrence must be given weight.
51 It was acknowledged by Mr Wraith that no sentence other than a substantial term of imprisonment was appropriate and that was realistic acknowledgement. It also follows from that that you come to be sentenced as a serious sexual offender in respect of each of Charges 3 to 19 inclusive and I make that declaration accordingly. I do not consider it necessary, in order to give proper weight to the paramount consideration of protection of the community, to impose a disproportionate sentence. Nor, clearly, is it appropriate to make all sentences cumulative upon each other. Were I to do so, I would be imposing a sentence, which in its totality, was disproportionate.
52 By reason of the number and nature of the charges, you are required under the Sex Offender Registration Act to report for life. I must provide you with a copy of the reporting conditions and I request that you sign a receipt acknowledging that you have received them. I will have a copy of the conditions and the receipt provided to you now. I will ask my associate to provide them to you, Mr Wraith, and for you to approach your client and ask him to sign it.
53 (Acknowledgement signed.)
54 Sentencing a person who has offended against a large number of children over a protracted period requires a judge to attempt to reconcile the irreconcilable. In order to ensure that the total effective sentence conforms with the principle of totality there must, of necessity, be a considerable degree of concurrency between sentences.
55 The criminal law regarded sexual offences very differently back in the 70s and 80s to the way it does today. As I have already noted in the summary, a number of the offences which are charged as indecent assault, would today, because they involved digital penetration of vagina or anus, be charged as committing an act of sexual penetration of a child, or even as rape. The maximum penalty for offences of indecent assault, whether involving penetration or not, was 5 years. Now, it is 10. I must sentence in accordance with the maximum sentence then applicable although it is often wildly disproportionate to the maximum sentence applicable today. I must also sentence, having regard to the fact that Parliament back then, did not regard such sexual offending against children to be as serious as it now acknowledges and accepts it is. There are significant differences in the maximum penalties for like conduct. It is hard to discern any rational basis for the differences.
56 You have pleaded guilty to 3 charges of anal penetration of 3 different children. One charge carries a maximum of 20 years, one 10 and one 5. All 5 charges involving Lilian Horgan involve acts of sexual penetration. Four involve penetration of her vagina. One, the penile penetration, carries a maximum of 10 years, the other three, digital penetration, 5 years. The charge of digital penetration of the anus also carries a maximum of 5 years.
57 Parliament has long criminalised sexual acts against children under 16. They are deemed too young, emotionally and legally, to be capable of giving a true consent to sexual activities. Hence, specific offences involving engaging in sexual activities with children under 16, have been created. They are incapable of consent. As they are incapable of consenting consent is not an element of these offences.
58 As the Court of Appeal has recently confirmed[14], as a child is incapable of consenting to such conduct, and consent is not an element of the offences, absence of consent is an aggravating feature in any such offence. Yet, the penalty for rape, where absence of consent is an element, that is an essential ingredient of the offence, is 25 years imprisonment, whereas the maximum sentence for sexual penetration of a child between 12 and 16 is 10 years, or 15 if it can be proved the child was under the care supervision or authority of the perpetrator. It is hard to understand why offences involving sexual penetration of a child, who is by law incapable of consenting, and in circumstances where absence of consent is properly to be regarded as an aggravating feature, attract a lesser maximum penalty than non-consenting acts of sexual penetration of an adult. I note, too that the maximum penalty for indecent act with or in the presence of a child, where again consent cannot be given, and where absence of consent is an aggravating feature, is the same as indecent assault (or sexual assault as it is now known) of an adult. That too, appears to me, to be anomalous.
[14]Clarkson v The Queen; E J A v The Queen [2011] VSCA 157.
59 So far as the charges of indecent assault are concerned, I am of the opinion that the maximum then applicable, namely 5 years imprisonment is insufficient to reflect the gravity of the more serious charges of that nature here, that is those involving penetration. For that reason, I propose to impose sentences for the charges of indecent assault involving penetration which are close to the maximum then applicable. Such an approach has been adopted by sentencing courts in this State in other cases, when for example, soliciting and receiving secret commissions was punishable by a maximum of 2 years, and incitement to murder, by 5 years. Parliament has increased the penalties for both offences substantially.
60 I make these observations, because I think it important for the victims and the community more broadly, to appreciate the constraints on me by reason of the lower penalties then prescribed by Parliament, and the anomalies in penalty that I have identified. So far as the discrepancy under current law, in penalties for penetrative offences involving children and rape are concerned, it is something, in my view, which legislators should examine.
61 So I must achieve that difficult, if not impossible balance, of fixing upon individual sentences for each offence by reference to the maximum then applicable, make some assessment of the relative gravity of the particular offending, compared to the other offences, whilst at the same time having regard to the greater recognition of the gravity of such offending today.
62 Because of the anomalous distinctions in charge and penalty for like conduct, to which I have referred, the low maxima, by today’s standards for offences of indecent assault, the need for a total sentence which reflects the overall criminality and which is not crushing, the requirement to impose individual sentences which reflect the gravity of the specific charge to which it relates, and the need to tailor or moderate individual sentences so as to allow for some cumulation between individual charges and individual victims, there is a certain artificiality in looking at the individual sentences or the degree of cumulation, or concurrency.
63 The need for proportionality and totality, particularly when sentencing an older man approaching the end of his life, means that there must be some reduction in the individual sentences even where the maximum for such an offence does properly reflect the current understanding of the gravity of such offending. Doing the best I can to strike the right path between these difficult, and at times irreconcilable considerations, I have arrived at the following sentences.
64 Mr Claffey, can you now please stand. Robert Claffey, on all charges to which you have pleaded guilty you are convicted. You are sentenced as follows.
65 On Charge 1, concerning Elizabeth Fielding, you are sentenced to be imprisoned for a period of 7 years and that is the base sentence.
66 On Charge 2, involving Cameron Dodd, of indecent assault you are sentenced to be imprisoned for a period of 2 years. I will announce the partial concurrencies or cumulations later.
67 On Charge 3, concerning Cameron Dodd, you are sentenced to be imprisoned for a period of 2 years.
68 On Charge 4, concerning Cameron Dodd, you are sentenced to be imprisoned for a period of 2 years.
69 On Charge 5, concerning Owen Gunn, you are sentenced to be imprisoned for a period of 2 years.
70 On Charge 6, concerning Zachary Fitchett, you are sentenced to be imprisoned for a period of 2 years.
71 On Charge 7, concerning Zachary Fitchett, you are sentenced to be imprisoned for a period of 2 years.
72 On Charge 8, concerning Hunter Donald, you are sentence to be imprisoned for a period of 2 years.
73 On Charge 9, concerning Angus Gardener, that is the charge of sexual penetration of a boy, you are sentenced to be imprisoned for a period of 5 years.
74 On Charge 10, concerning Archer Molle, you are sentenced to be imprisoned for a period of 2 years.
75 On Charge 11, concerning Logan Gerard, you are sentenced to be imprisoned for a period of 2 years.
76 On Charge 12, the first charge concerning Lilian Horgan, you are sentenced to be imprisoned for a period of 4 years.
77 On Charge 13, concerning Lilian Horgan, you are sentenced to be imprisoned for a period of 4 years.
78 On Charge 14, concerning Lilian Horgan, you are sentenced to be imprisoned for a period of 4 years.
79 On Charge 15, concerning Lilian Horgan, that is the charge of sexual penetration of a child, you are sentenced to be imprisoned for a period of 5 years.
80 On Charge 16, concerning Lilian Horgan, you are sentenced to be imprisoned for a period of 4 years.
81 On Charge 17, concerning Jeremy Wentworth-Shields, you are sentenced to be imprisoned for a period of 2 years.
82 On Charge 18, concerning Liam Bryant, you are sentenced to be imprisoned for a period of 2 years.
83 On Charge 19, concerning Jackson Edward, that is the charge of indecent act with or in the presence of a child under 16, which carried the penalty of 10 years, not 5 years maximum, you are sentenced to be imprisoned for a period of 2 years and 6 months.
84 I direct that 4 months of the sentence on Charge 2, Charge 3, Charge 4, Charge 5, Charge 6, Charge 7 and Charge 8, 2 years of the sentence on Charge 9, 6 months of the sentence on Charge 10, 6 months of the sentence on Charge 11, 12 months of the sentence on Charge 12, 12 months of the sentence on Charge 13, 12 months of the sentence on Charge 14, 12 months of the sentence on Charge 15, 12 months of the sentence on Charge 16, 4 months of the sentence on Charge 17, 4 months of the sentence on Charge 18 and 4 months of the sentence on Charge 19 be served cumulatively upon each other and upon the base sentence.
85 That makes a total effective sentence of 18 years and four months imprisonment. I direct that you serve a period of 13 years and 4 months before being declared eligible for parole.
86 I declare that you have spent 15 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
87 I declare, pursuant to s. 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you to a term of imprisonment of 22 years and six months and fixed a non-parole period of 17 years and 6 months.
88 Can I ask counsel to indicate whether the sentences that I have pronounced reflect what I said I intended to do? This is in respect of each child and each charge; and that the arithmetic is correct.
89 MR DOYLE: I'm just checking that, Your Honour. Yes, it's correct, Your Honour.
90 HER HONOUR: Application was made for the taking of a forensic sample, was it not?
91 MR DOYLE: Yes, it was, Your Honour.
92 HER HONOUR: I propose to make that, having regard to the number and nature of the offences. Mr Claffey, I am making an order for the taking of a forensic sample from you. I am making that order by reason of the seriousness, the circumstances of the offending.
93 I am directing that that be taken by way of a scraping from the mouth, that is, a buccal sample. I must warn you that, if you do not co-operate in the provision of that sample, then the police are authorised to use reasonable force to obtain that sample and it is likely that, in the circumstances, they would use the more invasive method available, namely that of a blood sample. Do you understand that?
94 OFFENDER: Yes, Your Honour.
95 HER HONOUR: Thank you. Any further orders that are required?
96 MR DOYLE: No, Your Honour.
97 MR WRAITH: No, Your Honour.
98 HER HONOUR: Could you remove, Mr Claffey, please. Please adjourn.
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