Director of Public Prosecutions v Hartman
[2015] VCC 1018
•24 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-14-00489
CR-15-00464
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BERNARD JOSEPH HARTMAN |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 8 July 2015 | |
DATE OF SENTENCE: | 24 July 2015 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Hartman | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1018 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Five charges of indecent assault – two charges of common law assault
Legislation Cited: Crimes Act 1958 (as it then was between 1 April 1959 and 28 February 1981), s44(1) (as amended by the Crimes (Sexual Offences) Act 1980; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:R v Swift (2007) 15 VR 497; Lucino v R [2015] VSCA 173; Cole (pseudonym) v R [2015] VSCA 44; Sherritt v R [2015] VSCA 1; Phillips v R (2012) 37 VR 594; SD v R (2013) 39 VR 487; Ryan v R (2001) 206 CLR 267; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Boulton v R [2014] VSCA 342; R v Merrett & Ors (2007) 37 VR 594; Rodriquez v R (2013) 40 VR 436
Sentence: Convicted and sentenced to a total effective sentence of three years’ imprisonment with one year suspended for a supervision period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Hennessy | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr G. Steward | Tony Hargreaves & Partners |
HIS HONOUR:
1 Bernard Joseph Hartman: On 15 April 2015, you pleaded guilty to the following charges on Indictment D12648556.2:
Charge 1 – that you, at North Altona in Victoria between 1 January 1973 and 31 December 1974, unlawfully and indecently assaulted Complainant A, a girl under the age of 16 years.
(Charge 1 is described as a “standalone” charge involving you inserting your finger into Complainant A’s vagina.)
Charge 2 – that you, at North Altona in Victoria between 1 February 1976 and 31 December 1976, unlawfully and indecently assaulted Complainant B, a girl under the age of 16 years.
(Charge 2 is described as a “representative” charge involving you touching Complainant B’s vagina.)
Charge 3 – that you, at North Altona in Victoria between 1 January 1977 and 25 August 1979, unlawfully and indecently assaulted Complainant B, a girl under the age of 16 years.
(Charge 3 is described as a “representative” charge involving you inserting your finger into Complainant B’s vagina.)
Charge 4 – that you, at North Altona in Victoria between 1 January 1977 and 25 August 1979, unlawfully and indecently assaulted Complainant B, a girl under the age of 16 years.
(Charge 4 is described as a “standalone” charge involving you inserting an object into Complainant B’s vagina.)
2 Such crimes are contrary to s55 of the Crimes Act 1958, as in operation between 1 April 1959 and 28 February 1981, and each offence carries a maximum penalty of five years’ imprisonment. The penalties for such crime have increased since the dates of offending, but the law provides that the maximum penalty applicable is that at the time of the offending.
3 The prosecution has prepared a written summary of the circumstances surrounding the offending (Exhibit 1). Such summary has been accepted by you and your counsel (save for an agreed deletion of the second sentence in paragraph 10) as an appropriate representation of the offending. The important matters of such summary are:
(a) You were born on 4 October 1939 and are presently 75 years of age. You are a citizen of the United States of America;
(b) You are a Marianist Brother of a religious Congregation known as the Society of Mary and have been a member of such Order for approximately the last 55 years. The Marianist Order has schools in a number of countries and, in particular, St Paul’s College in Blackshaws Road, Altona North (“the College”) was established in 1965 under the auspices of the Marianist Order. Control of the school was relinquished in 1985.
(c) You were a teacher and student counsellor at the College for 12 years from 1972 to 1984. During that period of time, you resided in accommodation on the campus of the College, and over time befriended a number of families and were often invited to attend at the homes of families of students at the College for meals and social occasions. During such times, you would have close contact with various members of those families, including the siblings of students at the College. In particular, you were able to have close contact with Complainant A and Complainant B, both being the younger siblings of students that you taught at the College;
(d) Complainant A, who is now 50 years of age, was residing at the family home with her parents, her two older brothers and, later, her younger sister. A brother was a student at the College and you would attend the family home;
· Complainant A recalls that she was almost ten years old and sitting on the lounge room floor with you, drawing pictures. You asked her to get her pillow and some Vaseline and then kneel on the floor with her legs spread apart. You then rubbed the Vaseline on her vagina with your fingers and inserted your finger inside her vagina, where you wiggled the finger around the inside of her vagina and told her that it felt good and was it good for her (Charge 1);
(e) Complainant B, who is now 46 years of age, was residing at the family home with her adoptive parents and three brothers. Her older brothers attended the College and you would attend the family home for dinner on occasion and also babysit on occasion. Sometimes you would draw pictures for her, read to her whilst she was in bed, and often put her to bed.
· Complainant B recalls that when she was about nine or ten, you rubbed her vagina with what she thought was Vaseline; on another occasion you rubbed your fingers on her clitoris with Vaseline while she was pretending to be asleep. On that occasion, she remembers having an orgasm and you saying to her:
“Did you like that? Did you have a funny feeling?”
Such clitoral rubbing is representative of the digital penetration which occurred at the time of Charge 4, when you tried to put your finger inside her vagina again, and got your finger inside briefly. The charge is representative of you penetrating Complainant B’s vagina with your finger on approximately four or five occasions (Charge 2);
· She recalls that you went on a holiday to America and returned with some “Tootsie rolls” for her and when she was eating one in bed, you placed your hand down her vagina and rubbed her vagina skin, her thigh and abdomen. Such act is representative of three specific occasions (referred to in paragraphs 11, 9 and 22 of her statement), in circumstances where this conduct occurred numerous times over several years.
On a specific occasion between 1977 and 1978 when the complainant was nine or ten years of age, you were lying on the bed next to her and reached under the blanket and were rubbing her vagina again (Charge 3);
· When she was nine or ten, Complainant B recalls you bringing an instrument, which she described was like a “turkey baster”. It consisted of a red-coloured rubber ball about half the size of a tennis ball, which was connected to a plastic tube about 5 or 6 inches long. You got out of your pocket another jar which had some sort of lubricant that was not Vaseline and seemed a runny liquid. Complainant B watched you squeeze the ball and draw the lubricant into the plastic tube, after which you stated:
“This will make it feel nice.”
You put the instrument under the blankets and inserted the end of it into her vagina and then squirted the lubricant substance into her vagina (Charge 4).
Victim impact statements
4 Complainant A, together with her son and Complainant B, made victim impact statements. Your counsel raised various objections to certain parts of such statements and after discussion with your counsel and counsel for the prosecution, agreement was reached that such statements would be read aloud in court by the makers of such statements, subject to some agreed deletions and editing.
5 Complainant A made a victim impact statement on 2 July 2015 which she read in court during the plea hearing. Such statement was tendered (together with a drawing completed by Complainant A entitled “Always lurking” and marked as an exhibit (Exhibit 3).) In that statement, Complainant A describes:
· Following the offending, her trust was “shattered” and that whenever you came to her house, it would cause her to sometimes vomit and instil a feeling of dread in her.
· After the abuse, she carried enormous guilt, and still does “to some degree”. In particular, she describes how she was concerned that you may abuse another child.
· How, from the age of 12, the use of alcohol became a “numbing power” and as she continued to “self-medicate”, such actions impacted on her ability to attend school and she missed many days of school and became introspective.
· How, to this day, she feels that she can “trust” no one, even to the extent with her own children she wore latex gloves when she had need to have physical contact with her children’s genitalia based on the fears the victims of paedophilia become paedophiles – this thought terrified her. In particular, she describes intense sadness of being incapable of having the closeness that she witnesses other mothers experiencing with their children.
· Her lack of trust in people gives rise to panic, which causes her to be unable to attend events or even walk in a shopping centre due to anxiety and fear. Such fear and lack of trust have led to much loneliness and isolation and a sense of hypervigilance, not only for herself but for every child who is in close proximity to her.
· Because of ongoing psychological problems, she has been unable to hold employment of any kind since about 2010.
· She has various medical costs for both antidepressants, antipsychotics, painkillers, and also has been attending counselling with doctors and various specialists over the last 20 years.
· Because of ongoing financial needs, accommodation has ultimately resulted in her living in a rented unit.
6 The son of Complainant A also made a victim impact statement dated 2 July 2015, which he also read in court. Such statement was tendered and marked as an exhibit (Exhibit 4). In his statement, he described that when growing up, his mother would not “be there for me at some very important times”. He observed her to be severely depressed for long periods of time and sometimes he would wake in the night hearing his mother yelling in panic, getting flashbacks to earlier events. He also described being unable to attend certain events because of financial difficulties brought about by his mother being unable to work at various times through his childhood.
7 Complainant B also made a victim impact statement dated 2 July 2015, which she also read in court. Such statement was tendered and marked as an exhibit (Exhibit 2). In that statement, she described the consequences of the offending takes the form of a “what if” conversation that takes place in her head somewhere around 3 o’clock in the morning. In particular:
· She speaks of being unable to have told her adoptive parents of the “unspeakable truth” that their dear friend and member of the Church had betrayed their charity and generosity and sexually abused their only daughter in their own house. She describes missing much school and an enquiry made by the principal as to what was wrong and being unable to find the words to tell him that she had been molested. She queries that if you had not taught her that her own home was not safe, she may not have left home at 18 to go to work, instead of taking up the university place she was offered. She also describes that other than her, others who love her and know what has happened feel grief on her behalf, experiencing anger and helplessness.
· She describes that although hoping that it would get “easier” as she gets older, she describes how she has found being a parent who has thrown the trauma into sharp relief, particularly when raising her daughters.
· She also describes spending years and thousands of dollars on counselling, with much time spent on medication. In this sense, she has no peace of mind, and that your actions constitute a theft of her body and peace of mind, leaving her in a near constant state of regret and uncertainty.
Indictment D12648556.3
8 In respect of that indictment, you pleaded not guilty to the following charges which were presented by the Director of Public Prosecutions:
Charge 1 – that you, at North Altona in Victoria between 1 March 1981 and 31 December 1981, indecently assaulted Complainant C.
Charge 2 – that you, at North Altona in Victoria between 1 March 1981 and 31 December 1981, indecently assaulted Complainant C.
Particulars: You kept Complainant C in after class and touched his penis and testicles.
Charge 3 – that you, at North Altona in Victoria between 1 March 1981 and 31 December 1981, assaulted Complainant C.
Particulars: On the same day and at the same time as Charge 2, you punched Complainant C in the head and in his ribs.
Charge 4 – that you, at North Altona in Victoria between 1 January 1982 and 26 November 1982, indecently assaulted Complainant C.
Charge 5 – that you, at North Altona in Victoria between 1 December 1982 and 26 November 1982, indecently assaulted Complainant C.
Charge 6 – that you, at North Altona in Victoria between 1 January 1982 and 26 November 1982, indecently assaulted Complainant C.
Charge 7 – that you, at North Altona in Victoria between 1 January 1982 and 26 November 1982, indecently assaulted Complainant C.
Charge 8 – that you, at North Altona in Victoria between 1 January 1982 and 26 November 1982, assaulted Complainant C.
9 You stood your trial, and on 1 May 2015, a jury:
(a) found you “guilty” in respect of Charges 2, 3 and 8;
(b) found you “not guilty” in respect of Charges 1, 4, 5, 6 and 7.
10 The charge of indecent assault (Charge 2) is contrary to s44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980, and carries a maximum penalty of five years’ imprisonment. The charges of common law assault (Charges 3 and 8) carry a maximum penalty of two years’ imprisonment. Again, the penalties for such crimes have increased since the dates of the offending, but the law provides that the maximum penalty applicable is that at the time of the offending.
Circumstances of such offending
11 Complainant C is presently a 50 year old disability pensioner. He attended the College where you taught from 1978 (Year 7), extending through to 1979, after which he travelled to Canada for a year in 1980. He resumed his education at the College in 1981, commencing Year 10, when he studied biology for one term, with you being his class teacher. During that year, he turned 16. In 1982, he continued to study biology for the first two terms of a three-term year.
12 Complainant C gave evidence in relation to each of Charges 2, 3 and 8. You also gave evidence during which you denied, amongst other things, having any physical contact with any student (save for one innocuous episode) and certainly denied any sexual or physical assault of any student, and in particular, Complainant C. You gave evidence that Complainant C was a “liar” in relation to his allegations against you.
13 Given the jury verdict, I consider such verdict must be construed that the jury accepted that, when in your biology class in 1981, Complainant C was kept after class, during which time he was required by you to take his pants down a little bit, after which you placed your hand inside his pants and underpants and fondled his penis and testicles (Charge 2). Furthermore, when he tried to resist, you hit him on the ribs and across the head (Charge 3).
14 Similarly, I consider that the jury verdict must be construed that, on another particular occasion, you again hit and struck the complainant (Charge 8).
Victim Impact Statements
15 Complainant C completed a victim impact statement on 2 July 2015. Complainant C was not at court during the plea hearing and ultimately his statement was tendered and marked as an exhibit (Exhibit 5). Similarly, the partner of Complainant C made a victim impact statement on 2 July 2015, and such statement was also tendered as an exhibit (Exhibit 6).
16 Prior to the tender of such statements, your counsel informed the court that both statements were problematical, not least because Complainant C refers to ongoing sexual abuse and physical assaults by you during the course of his studies in biology in 1981 and 1982 in circumstances where the jury only found you guilty in relation to one charge of indecent assault and two charges of assault, one of which accompanied the sexual assault. Furthermore, some other issues of admissibility were also canvassed.
17 Ultimately, the parties agreed to tender both the victim impact statements of Complainant C and his partner, consistent with the principles enunciated in R v Swift (2007) 15 VR 497 at paragraphs [6] and [7], which was seemingly approved of in Lucino v R [2015] VSCA 173.
18 In his statement, Complainant C refers to:
· That prior to your offending, he was a “happy, popular and outgoing boy” and that your offending has physically, emotionally, financially and socially dominated his life since that time.
· He describes ongoing psychological problems involving panic attacks, anxiety, depression, flashbacks, nightmares, mood swings and addiction issues, all of which have required counsellors, psychiatric treatment and/or psychological treatment over the years.
· After being sexually assaulted by you, he spent years questioning his own sexuality and felt worthless for many years. In his later life, he has had great difficulty with relationships, because he feels he is unable to trust someone else completely.
· He has incurred significant medical costs over the years as a result of receiving the various types of treatment to help relieve his psychological problems.
· He describes how his schooling was affected and also his employment over the years.
· Whereas before your assaults he had a strong Catholic faith, but now such faith has been lost and he feels anxious whenever Catholicism or even religion is mentioned, causing him to avoid events such as weddings, funerals and christenings if they are held in churches.
· He takes a large number of tablets for his various conditions.
19 In her statement, the partner of Complainant C states that she is the fiancée of the complainant. She describes her observations of Complainant C suffering anxiety and depression, but also in particular, describes how it has impacted on her life in the following ways:
· Socially, in being unable to go to a variety of functions because Complainant C has difficulty leaving the house due to ongoing issues with anxiety and depression;
· Losing contact with friends because she needs to stay and look after Complainant C, and that he cannot be left alone for too long;
· Accompanying Complainant C to various doctors and hospital stays, which in turn impacts on her ability to look after her five children from a previous relationship;
· Helping Complainant C deal with his depression, anxiety and panic attacks, which makes it difficult for everyday life and the lives of her children;
· The financial impact, in that she has to cancel shifts of work so she can help Complainant C when required or attend doctors as required.
Material relied on by you
20 Your counsel tendered the following documents:
· Exhibit 1 – a letter from Brother Dennis Schmitz of the Marianist Centre of Hawaii dated April 2015
· Exhibit B – document prepared by Brother Quigley setting out details of your safety plan
· Exhibit C - Report of psychologist, Mr Patrick Newton, dated 1 July 2015, together with statement of qualifications and experience
· Exhibit D – internal memorandum prepared by Dr M. Barth dated 2 July 2015
· Exhibit E – report from Dr Edward Oludare of the Emmanuel Medical Centre, St Albans, dated 3 July 2015
· Exhibit F – report from The Very Reverend L. J. Hoare of the Vianney Renewal Centre dated 31 August 2013
· Exhibit G – a travel safety plan for you to travel to Melbourne dated 2 September 2013
· Exhibit H – report from Ms Michelle McGrath, licensed clinical psychologist, dated 26 August 2013
· Exhibit J – further report of The Very Reverend L. J. Hoare, undated
· Exhibit K – reference from Mr Gregory C. Meyers, President of Meyers Printing & Design Inc.
· Exhibit L – reference from Ms Florence Olaru Welsh Trzeciak dated May 2015
· Exhibit M - Reference from Thomas Schroer, undated
· Exhibit N – Report of Mr John H. Campbell, Marianist Community, Honolulu, dated 4 June 2015
· Exhibit P – Report of Brother Robert Wiethorn, director of the Mercy Siena Marianist Community, dated 22 May 2015
· Exhibit Q – reference of Father John A. McGrath of the Marianist Novitiate Community, dated 1 June 2015
· Exhibit R – outline of defence submissions.
Your personal circumstances
21 On the basis of the various submissions made by your counsel, and the material tendered, I set out details of your personal circumstances and general background.
22 You were born in Pittsburgh in the United States and have two younger male siblings. Although you describe the discipline within your family was relatively strict, you denied any family history of drug abuse, mental illness, violence or criminality. Furthermore, you describe your family as being devout members of the Roman Catholic Church, endorsing conservative social mores, with sexual issues not being discussed openly and with little or no sex education, either at school or at home.
23 You attended a local primary school in Pittsburgh and experienced considerable difficulties with literacy and numeracy, both of which required extensive remedial education to improve these skills. You consider that such early learning problems left you with a lack of self-confidence, which persisted well into your adult years.
24 You then attended a Catholic middle school in Pittsburgh, where your academic performance improved, and you also participated extensively in sporting activities, which provided a foundation for a large friendship circle.
25 You informed Mr Newton, the psychologist, that you had been sexually assaulted by a group of older boys when in your secondary school years, and you found such experience extremely distressing.
26 From about the equivalent of Year 9 (at age 15), you attended a Catholic boarding school that provided preparation for entry to the Marianist Order. During your period of stay there, your education increasingly focussed on subjects related to your vocation. During this period of time, you did struggle with interpersonal aspects and questioned your ability to maintain a celibate lifestyle as required.
27 After joining the Marianist Order, you undertook teacher training and completed a Bachelor of Education with majors in biology and art. Later, you completed a Master’s degree in “counselling and guidance”. Most of your activities as a brother in the Marianist Order have involved teaching, both in the United States and Australia, extending over the years between 1961 and seemingly into the late 1990s. You informed Mr Newton that you enjoyed teaching, but found it challenging to overcome your own academic limitations.
28 You informed Mr Newton that when teaching you did experience attractions to women through most of the time and noted that, from your teens onwards, a number of these have progressed to encompass physical intimacy. In particular, you informed Mr Newton that the most serious of these relationships was with a Catholic nun, which took place in the months preceding the offending and progressed to the point where discussion involved you leaving your respective orders and marrying. Whereas the woman was willing to do so, ultimately, you determined that your commitment to the religious life was too strong to follow this course. Following this decision, you informed Mr Newton that you experienced long-term emotional turmoil, which incorporated a strong experience of depression.
29 You also informed Mr Newton that you had suffered long-term depressive symptoms dating from your teens, which you believe had been brought about by your loneliness and your interpersonal dissatisfaction on account of your vow of celibacy.
30 You also informed Mr Newton that you began to drink alcohol at the age of 16, and over the years had been a heavy drinker, attempting to try and alleviate symptoms of depression and loneliness – although you came to realise that your drinking in fact exacerbated such problems. After various bouts of treatment, your drinking habit subsided and for some time you have only had a low consumption of alcohol.
31 In January 1997, the Marianist Provincial received a letter from the Archdiocese of Melbourne wherein it was alleged that you had abused young women in Melbourne in the 1970s. Following that letter, the Marianist Order removed you from any teaching duties and the following occurred:
(a) You were referred to the St Louis Consultation Centre in Missouri in February 1997 for three weeks’ psychological assessment by a Dr P. Midden. At that time, you were placed on Zoloft;
(b) In March 1997, you attended the River Oaks Hospital, New Orleans, to undergo psychosexual therapy for one month, during which time you worked with the staff psychologist. Such facility was a secure facility;
(c) From April 1977 to July 1977, you were referred to the Recon Centre in Missouri for a period of four months. The Recon Centre is a secure facility and again, you worked with the psychologist, Dr Midden, undergoing group therapy, individual tasks and placed on the medication Abilify;
(d) From about August 1997 to June 1998, you resided at 141 Washington Street, Dayton, Ohio, and during this time, you worked as one of the ground crew at the retreat centre. You were also undergoing consultations with a psychologist, Ms Sally Brenner, which involved art therapy, attendances at Alcoholics Anonymous (AA) groups and Sexual Addiction Anonymous (SAA);
(e) From July 1998 to July 1999, you continued to live at Washington Street, but although receiving ongoing treatment, commenced to work for the Marianist Press as a secretary/proof reader for about a year. During this time, you continued to attend AA meetings and also attended SAA twice a week;
(f) From July 1999 to July 2000, you continued to live at Washington Street, but now worked for Greg Meyers, who bought the Marianist Press business from the religious order. Meyers, in a reference, has described you as a very hard worker and dedicated employee (see Exhibit K);
(g) In the late 1990s, your religious order, pursuant to its protocols, formulated what is referred to as a “safety plan” which, in particular, specified that you could not be involved in ministry sittings with children, adolescents or vulnerable women, nor could you be ever alone with, or visit families with children or adolescents;
(h) Over the period from July 2000 to approximately December 2012, you continued to live at Washington Street and undergo ongoing therapy with AA and Sexual Addiction Anonymous. During this time, you worked for a period at the Marianist Mission, Ohio, as a clerical worker. For much of the time you were at Washington Street, you were supervised by Father J. McGrath, who describes you as being very co-operative during this period of time and conscientious in carrying out your safety plan. According to him, you developed interests in art, meditation, journaling and physical exercise (see generally Exhibit Q);
(i) From January 2012 to February 2012, while awaiting placement at another institution, you were moved to the Mercy Siena Retirement Village in Ohio, where you assisted with the old and infirm brothers. Treatment continued when you were at this particular retirement village;
(j) From March 2012 until August 2013, you were admitted to the St John Vianney Centre in Missouri, which is a secure facility, and where you were assigned chores. During that time, you were under the care of a clinical psychologist, Ms Michele McGrath, who treated you with individual psychotherapy once a week commencing in March 2012. She describes that although you were upset from being “uprooted abruptly” from your assignments over the past seven years, you were “quite co-operative and adjusted well to the program”.
I refer to the report of Ms McGrath dated 26 August 2013 (Exhibit H), where she describes treating you for you to obtain a better understanding of your paraphilia and sexually addictive behaviour. She comments that although you were very honest about your past history of sexually abusing young girls, you seemed to lack insight into much of this behaviour, as well as your sexual addiction. She notes that you did contribute to the community in numerous ways, using your talent as an artist to make reparation to victims of abuse. Ms McGrath describes you as a model resident and who has made some reparations through the sale of your artwork to assist those who have suffered abuse.
32 In September 2013, at the request of the Australian authorities, the Marianist Order voluntarily sent you to Australia, accompanied by a supervising Marianist brother pursuant to a travel safety plan dated 2 September 2013 (Exhibit G). Since arriving in Australia, you have resided in a religious community house and been under the supervision of Brother Quigley.
33 On coming to Australia, you have been under the medical care of Dr Edward Oludare, who has diagnosed you to be suffering from severe depression, hypercholesterolaemia, osteoarthritis, multiple life-threatening allergies to fish sauce, iodine, wool, shellfish and erythromycin, gastroesophageal reflux disease and a right renal cyst and kidney stone. You are on a variety of medications and, in particular, are on a high dose of the antidepressant, Sertraline. Dr Oludare opined that any prison sentence would be very difficult for you in view of your medical conditions. (See Exhibit E).
34 Since 20 September 2013, you have been attending the psychologist, Dr Matthew Barth, and participated in the Sexual Offender Treatment Program (SOTP). Dr Barth describes such program to be focussed on assisting you to gain insight into your offending, enhancing victim empathy, developing approved coping and interpersonal skills and implementing a comprehensive relapse prevention plan to reduce the risk of recidivism.
35 As at 26 June 2015, you had attended 34 treatment sessions.
36 Dr Barth reports that you have presented as a very motivated and committed participant in the SOTP and have made very good progress in all aspects of treatment. In particular, he records that you have gained valuable insight into the emotional factors which underpin your offending and have improved your coping and communication skills to address your needs more constructively.
37 Dr Barth was of the opinion that you have already undertaken most of the offence-specific treatment he would ordinarily recommend, and furthermore, the progress you have made in the SOTP is more advanced than most clients that he treats. However, he considers that you would benefit from treatment which continues to monitor information of the skills and strategies developed in treatment and furthermore, despite improvement of your depressive and anxiety-related symptoms, you do remain vulnerable to periods of intense emotional distress. (See generally Exhibit D).
The evidence of David John Quigley
38 Your counsel called David John Quigley on your behalf. Quigley described himself as a brother of the Marianist Order since 1962 and was performing teaching duties before his retirement.
39 He has been living in Australia since September 2013 for the sole purpose of accompanying and supervising you under the safety plan designed by the Marianist Order.
40 He described that you and he and another brother live at a house in St Albans and have been there since 25 September 2013, when you arrived in Australia.
41 On five occasions since he has accompanied you to Australia, he has returned to the United States, during which times other brothers of the Marianist Order have supervised you in his absence. I refer to the letter from John H. Campbell of the Marianist community dated 4 June 2015 (Exhibit N) wherein he describes coming to Australia on several occasions to relieve Quigley. Campbell describes you as being particularly remorseful about your actions in relation to Complainants A and B.
42 In particular, Quigley described his role, in that you are unable to leave the house or yard without him and in particular, any activity involving shopping, going out, attending solicitors and the like is to be accompanied by him pursuant to the safety plan designed by the Marianist Order. He confirmed that the plan has been observed “to the letter” to date.
43 He also gave evidence that whatever the sentence, the safety plan will remain in force in relation to you for the duration of your time in the Marianist Order as a result of you being convicted for these offences. Furthermore, Quigley confirmed that you would not be expelled from the Order whatever the outcome of this trial, although you could choose to leave the Order at your own volition, which would bring about a disengagement from the safety plan. Quigley asserted that there had been no indication that you intended to leave the Order, but rather, intended to ultimately return to the United States and find a role assisting older brothers in the Order.
The evidence of Mr Patrick Newton
44 Your counsel called Mr Patrick Newton to give evidence before the court. Mr Newton is a clinical and forensic psychologist who examined you on 10 March 2015, 2 April 2015 and on the morning of the plea, that is, 8 July 2015. He adopted his report dated 1 July 2015 (Exhibit C).
45 In his report, Mr Newton confirmed that you continue to suffer residual symptoms of a “persistent depressive disorder” (dysthymia) which has been worse since your arrest in relation to these charges, but is a condition that you have suffered for most of your adult life. He considered that your thought processes were lucid and logical, with no evidence of disorder of thought and there was no evident defect in your capacity for moral reasoning.
46 In particular, Mr Newton was of the view that your risk of sexual recidivism was that you are at “low risk” of re-offending. In particular, he noted the focus of intensive treatment and medication over the years since the offending, the stability of your personal circumstances and your history of being offence free in the community for approximately 35 years since the subject offending.
47 In particular, on the morning of the plea, Mr Newton informed you about the victim impact statements of Complainants A and B, and described how you were deeply remorseful and distressed on becoming aware of the full impacts of your offending. Further, Mr Newton highlighted that rather than leave the Marianist Order, you have engaged in counselling and stringent supervision over the years, with a willingness to engage in the process rather than evade it. He considered it rare to see someone who has participated in such therapy with good compliance over an 18-year period.
48 Mr Newton considered that any sentence of immediate imprisonment had the potential for making your depression worse and that given your age and the nature of your convictions, it would make any period of imprisonment more difficult for you compared to others. Curiously, he also considered that being “different” – that is, American – would make you stand out and receive unwanted attention.
49 Mr Newton accepted that although you would have medication in prison, it is unclear whether you would get the exact medication, and you would not have access to the ongoing treatment from Dr Barth and, in particular, the Sex Offender treatment, as you are not a high risk of reoffending.
50 Mr Newton also confirmed that although you had great remorse in relation to Complainants A and B – that is the female complainants – you have denied any offending against the male complainant.
Submissions made by the prosecution in relation to sentence
51 In relation to your offending involving Complainants A and B, counsel for the prosecution submitted:
(a) Objectively, the offending involving both these complainants was “very serious” and was at the high end of the offence of “indecent assault”. In particular, Charges 1, 3 and 4 involved digital penetration of the vagina and the insertion of an object into the vagina;
(b) The victims of your offending were children aged not quite ten (Complainant A), and between nine or ten through to approximately 11 or 12 (Complainant B);
(c) Such offending was over a number of years;
(d) Such offending was aggravated by the clear abuse of trust – trust brought about by you being a religious figure, teacher and family friend;
(e) That the abuse occurred in the family homes of the complainants and was brazen offending, with no capacity for either complainant to really retreat from the situation;
(f) The offending was aggravated also by the inability of each complainant to complain at the time of the offending, given their fear and the position that you held in their families’ lives;
(g) Your offending has had a significant impact on the lives of each of the complainants and continues to have such an impact;
(h) That your plea of guilty in relation to the charges was not early and indeed, you were arraigned on 15 April 2015, a week prior to the trial listing. Prior to that time, a committal had occurred and Complainant B was required to give some evidence at the committal, and Complainant A was required to attend a committal but gave no evidence. In such circumstances, it was submitted that there was little utilitarian value in your plea of guilty.
52 Counsel for the prosecution, in relation to your offending involving Complainant C, submitted:
(a) That the circumstances of Charge 2 were objectively serious but perhaps not as serious as the charges involving the female complainants, as some of those charges involved the insertion of a finger or an object into the vagina;
(b) Complainant C was a schoolboy aged approximately 16 or 17 at the time of the offending;
(c) That you have shown no remorse whatsoever for any of the offending in relation to Complainant C;
(d) Your offending also has had an impact on the life of Complainant C and continues to have an impact;
(e) That again, there was an abuse of trust, as you were a religious figure and teacher who had control over Complainant C in the classroom;
(f) Again, given your clerical status, there was no one for Complainant C to turn to to make complaints about your assaults.
53 In all of the circumstances, counsel for the prosecution submitted that it was appropriate that you be sentenced to an immediate term of imprisonment, and a Community Corrections Order was inappropriate given the objective seriousness of the offending. Counsel for the prosecution did accept that general deterrence was a far more significant factor than specific deterrence given your age and the unlikelihood of you re-offending.
Plea of your counsel
54 In a very able plea in mitigation of sentence, your counsel initially highlighted that there was no offending prior to the subject offending and there has been no offending over the last 34 four years or so since the subject offending.
55 In relation to the offending involving Complainants A and B, your counsel accepted that such offending was objectively “serious” and involved breaches of trust given your spiritual role and friendship with the respective families. He submitted:
(a) That although the plea of guilty was late in the piece, it was clear from all the material that you accepted your culpability in relation to the offending against the female complainants. Your counsel pointed out that ongoing negotiation between the Director of Public Prosecutions and your solicitors ultimately brought about the pleas of guilty shortly prior to the commencement of the trial. Your counsel stressed that the effect of such pleas of guilty had significant utilitarian value, in that it was not necessary to proceed with a trial which would ultimately involve each of the complainants giving evidence and re-living the circumstances of your offending;
(b) That you have shown genuine and extended remorse in relation to each of the female complainants, evidenced by your commitment to rehabilitation and involvement in various courses over the years since 1999. Furthermore, such remorse is demonstrated by your comments to Mr Newton, Dr Barth and indeed, some of your supervisors over the years;
(c) It is important to appreciate that you voluntarily entered into the safety plan organised by your religious order and have been under reasonably strict supervision in your activities and have received various types of treatment since about 1999, sometimes in secure facilities. The introduction of the safety plan caused you to lose your position as a teacher in the Marianist Order and required you to perform clerical and labouring tasks. In this respect, counsel referred to your supervision under the safety plan as a type of extra curial punishment;
(d) That in the circumstances of this matter, a very powerful mitigating factor is the issue of “delay” in the prosecution of the offences involving Complainants A and B, when the authorities knew from early days that complaints had been made against you by the complainants. Such delay was not attributable to you.
I understood the submission of your counsel that the issue of delay essentially extended to two matters: that during the period of delay there has been a lengthy process of rehabilitation since the offending and that any sentence should be tailored to ensure as much as possible that you have the opportunity to complete the process of rehabilitation.
Furthermore, that as a point of fairness to you, the sentences should reflect the fact that these offences have been hanging over your head for some time, thereby keeping you in a state of suspense as to what will happen with you. Your counsel referred to the recent decisions of Cole (pseudonym) v R [2015] VSCA 44 and Sherritt v R [2015] VSCA 1;
(e) That any period of imprisonment would involve greater hardship than others, given the longstanding depression suffered by you, your age, the nature of the offences for which you would be sentenced, and also, as asserted by Mr Newton, the difference in being American, which would attract attention.
56 In all the circumstances, counsel, although accepting the offences in relation to Complainants A and B are serious and should attract a sentence of imprisonment, submitted that you should not be sentenced to an immediate term of imprisonment. In this sense, it was noted that given the date of the offending, a suspended sentence was an available option to the court. In particular, your counsel stressed that given your age, your history of treatment over the years, your low risk of re-offending, and remorse in relation to such offending, specific deterrence was not a relevant sentencing factor.
57 In relation to the offences involving Complainant C, your counsel appropriately conceded that you have shown no remorse in relation to such offending – maintaining that you did not assault sexually or otherwise Complainant C. In particular, your counsel did submit:
(a) The circumstances of the offending in Charge 3 occurred at the same time as the offending of Charge 2;
(b) That none of the offences in relation to Complainant C should attract a term of imprisonment, as the indecent assault did not involve penetration and the other two charges involved a physical assault of short duration, causing no particular physical damage.
Conclusion
58 I do consider that the offences committed by you in relation to Complainants A and B are objectively of a very serious nature – in particular, Charges 1, 3 and 4, which involved either the insertion of your finger into the vagina of a complainant or the insertion of the object into the vagina of Complainant B.
59 In particular, I refer to the following:
(a) Each of the complainants was a young girl who hitherto would have considered you a family friend, a respected schoolteacher and a religious brother. In all of those senses, you have breached the trust of those young girls with blatant offending in their homes which, as counsel for the prosecution submitted, allowed little avenue for retreat;
(b) As is not uncommon in these situations, the matter is compounded when these young victims had nowhere to turn and make immediate complaint, given your status as a friend of the family, teacher at the local school and religious brother;
(c) Each of the lives of the complainants have been adversely affected by your actions and continues to be affected to this date. I do accept that each of the complainants has had psychological difficulties over the years which has pervaded many aspects of their life;
(d) I am also mindful that when I sentence you in relation to Charges 2 and 3, they are representative charges. I am required to sentence you on the basis of the conduct which founds each charge but I may have regard to other occasions which you have admitted in coming to a view as to the gravity of the subject offence – that is, I may view the offence in the wider context disclosed by your admission of the other acts which are not the subject of the charge. Again, this highlights, in my view, the objective seriousness of such offending.
60 By way of mitigation, I do accept and take into account:
(a) That although your plea of guilty could not be described as an early plea, such plea does have utilitarian value, in that it has saved the time and money involved in a trial and, more particularly, saved the complainants having to give evidence and re-live the circumstances surrounding your offending. (See Phillips v R (2012) 37 VR 594 at [36]);
(b) Although you had no prior convictions at the time when the subject offending commenced, the weight attached to this sentencing aspect is “limited”, given that the subject offences occurred over a number of years. (See generally SD v R (2013) 39 VR 487; Ryan v R (2001) 206 CLR 267 and in particular, McHugh J at [33]-[34]);
(c) Because of your ongoing depression, I do accept that the so-called fifth and sixth principles enunciated in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 have application, in that any prison sentence will weigh more heavily on you than it would on a person in normal health and there is a serious risk of prison having a significant adverse effect on your mental health. In general terms, I also accept that your age and the nature of the offences for which you are to be convicted would make a prison sentence more arduous;
(d) I do accept that you have genuine remorse in relation to each of the female complainants and this has been noted by various examiners and indeed, this is exemplified, at least in part, by a letter written by you to Complainant A on 3 November 1991 (in response to a letter from her) wherein you acknowledge the hurt that you caused her by way of your offending, and you stated that you were sorry;
(e) I also accept that the issue of delay is a strong mitigating factor.
· There was no issue that Complainant A initially made a statement to police on 6 January 2003 which was not acted upon and later made a further statement on 18 December 2012.
· Furthermore, Complainant A wrote to you on 5 October 1999 advising you of the consequences to her of your abuse and to this letter, as I have already recorded, you wrote to Complainant A on or about 3 November 1999 indicating that you know you have been the cause of the “hurt” suffered by her. Also, on 5 October 1999, Complainant A wrote to Brother J. Kamis, the Provincial of the Marianist Society in the United States, enquiring what type of action would be taken against you as a result of your sexual abuse. On 3 November 1999, Brother Kamis advised Complainant A that you were no longer in the ministry and did not associate with women or children.
· There was also no issue that Complainant B at or about the age of 20 years, contacted the Altona Police Station and was directed to the Community Policing Squad in Prahran, where she spoke to a female police officer and advised her of her allegations against you. Complainant B does not recall that she actually made a statement. Complainant B also made a statement to the police on 12 June 2012. At some time during her early twenties, Complainant B also made complaint to a young priest at her local church.
· I consider that such delay can be described as “undue” and most probably inordinate given the date of the offending and, more particularly, when complaints were made of the offending to the relevant authorities, no prosecution of these offences took place until relatively recent times, with a charge sheet being issued on 31 July 2013. Although the reason for such delay is not that clear, the manner in which a court should address explained or unexplained delay is not meaningfully different. (See R v Merrett & Ors (2007) 37 VR 594, per Maxwell P).
· I consider that the delay in this matter is relevant in two ways – firstly, it is relevant to rehabilitation that has occurred during the delay (and the desirability of it continuing) and the effect that has in turn on specific deterrence. Secondly, the delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself. (See generally Rodriquez v R (2013) 40 VR 436 at [36] – [37]);
(f) I also accept that from about 1999, through the auspices of your religious order, you have engaged in various therapies, courses and counselling to aid your rehabilitation, culminating in the treatment from Dr Barth on your arrival back in Australia in 2013. Clearly enough, you have engaged in such therapy but I do note that this situation was brought about by your Order and you being directed to do so, at least for the treatment in the United States. I do accept that since 1999 you have been engaged in perhaps more menial activities in your Order, brought about by being required to attend various places conducted by your Order. Ultimately, I do accept that you have made a genuine effort to rehabilitate yourself, at least in relation to the offending involving Complainants A and B;
(g) I also accept that given your age, the therapy you have undertaken and probably the ongoing supervision by your Order, it is unlikely that you would re-offend, at least in relation to female victims. In this respect, I do accept the submission that specific deterrence is not a relevant sentencing factor.
61 In relation to the offences involving Complainant C, I consider that Charge 2 is objectively serious, in that in your role as a schoolteacher you effectively caused Complainant C to loosen his trousers and you placed your hand down his trousers and fondled his penis and testicles. Such offence occurred in the circumstances where he was aged approximately 16 or 17 and you were his schoolmaster, and again involved breaches of trust in your role as a schoolteacher and a religious brother at the school.
62 Again, Complainant C had no one to turn to about such offending, given your position as a religious brother and you being a teacher at the school.
63 According to your counsel, you continue to deny that the offending took place and have shown no remorse whatsoever for such offending.
64 Charge 3, involving your physical assault, occurred during the sexual assault described in Charge 2. Furthermore, Charge 8 involved a physical assault, which again it must be stressed occurred in the circumstances where you were the teacher of Complainant C and he was under your control.
65 I also take into account the contents of Complainant C’s victim impact statement and accept that your offending has had and continues to have an impact on many aspects of his life.
66 In mitigation, as I have already recorded, I do accept that given your age and the rehabilitative treatment that you have undertaken over the years, it is probably highly unlikely that you would re-offend on any male, notwithstanding that you do not accept that you sexually assaulted Complainant C or, for that matter, assaulted him at all.
67 I consider that the matters of general deterrence – that is deterring other persons committing offences such as yours, denunciation by the court of the type of conduct in which you engaged, and just punishment are important factors in reaching an appropriate sentence. I consider, given your age, efforts at rehabilitation and the strong unlikelihood of committing any further sexual offences, that specific deterrence is not a relevant factor in sentencing you. I also take into account the various mitigatory matters to which I have referred earlier in these comments, and in particular, the issue of delay.
68 I also accept that for the purposes of sentencing, that just punishment should be somewhat tempered in acknowledgement of your compliance with the protocols of your Marianist Order since the late 1990s, which on occasion required you to be in secure facilities and generally for you to be under general supervision.
69 I am aware of the principles established in the leading case of Boulton v R [2014] VSCA 342 and in particular paragraphs [99] – [130] and Appendix 1 thereto. In particular, I refer to s5(4C) of the Sentencing Act 1991, which prohibits the imposition of a sentence of imprisonment unless the sentencing court concludes that the purposes of the sentence cannot be achieved by a Community Corrections Order to which specified conditions are attached.
70 After a consideration of all of these matters, I have come to the view that a consideration of the purpose for which this sentence is to be imposed cannot be achieved by a sentence that does not involve your incarceration. I intend to convict you of all offences.
71 Given the nature of your offending, you will be sentenced as a serious offender within the meaning of Part 2A of the Sentencing Act 1991 and in particular, as a serious sexual offender. I direct that there be entered in the records of the court that in relation to Charges 3 and 4 of Indictment D12648556.2 and in relation to Charge 2 on Indictment D12648556.3, that you were sentenced for such offences as a serious sexual offender.
72 Section 6D of the Sentencing Act 1991 directs the court, in determining the length of the sentence, to have regard to the protection of the community as the principal purpose for which the sentence is imposed, and may impose a sentence longer than which is proportionate to the gravity of the offence considered in the light of its objective circumstances. In the circumstances of this matter, the prosecution do not seek a disproportionate sentence, and after due consideration, I do not intend to order a disproportionate sentence.
73 Pursuant to s6E of the Sentencing Act 1991, every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any other sentences of imprisonment imposed on the offender at the same time.
74 Please be upstanding.
75 In relation to Indictment D12648556.2, I order:
(a) In relation to Charge 1 involving the indecent assault of Complainant A, you are convicted and sentenced to a period of eight months’ imprisonment;
(b) In relation to Charge 2 involving the indecent assault of Complainant B (a representative charge), you are convicted and sentenced to a period of ten months’ imprisonment;
(c) In relation to Charge 3 involving the indecent assault of Complainant B (a representative charge), you are convicted and sentenced to a period of 12 months’ imprisonment. This is the base sentence on this indictment;
(d) In relation to Charge 4 involving the indecent assault of Complainant B, you are convicted and sentenced to a period of eight months’ imprisonment.
1 The court directs that eight months of the sentence imposed on Charge 2, five months of the sentence imposed on Charge 1, and five months of the sentence imposed on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 3. The total effective sentence is 30 months’ imprisonment.
2 I declare, pursuant to s6AAA of the Sentencing Act 1991, that save for your plea of guilty in relation to each of the charges, I would have sentenced you to four years’ imprisonment.
3 In relation to Indictment D12648556.3, I order:
(a) In relation to Charge 2 involving the indecent assault of Complainant C, you are convicted and sentenced to a period of six months’ imprisonment. This is the base sentence on this indictment;
(b) In relation to Charge 3 involving the assault of Complainant C, you are convicted and sentenced to a period of two months’ imprisonment;
(c) In relation to Charge 8 involving the assault of Complainant C, you are convicted and sentenced to a period of two months' imprisonment.
4 The court directs that one month of the sentence imposed on Charge 3 and one month of the sentence imposed on Charge 8 be served cumulatively upon each other and upon the sentence imposed on Charge 2. The total effective sentence is eight months’ imprisonment.
5 The court directs that the total effective sentence imposed on Indictment D12648556.2 and six months of the total effective sentence imposed on Indictment D12648556.3 be served cumulatively upon each other.
6 The total effective sentence is three years’ imprisonment.
7 I declare that the three days you have served up to today as pre-sentence detention be administratively deducted from this sentence as time already served.
8 Pursuant to the then s27 of the Sentencing Act 1991, I order that of your effective sentence of three years’ imprisonment, one year of such sentence be suspended for a supervision period of three years.
76 Pursuant to the provisions of the Sex Offenders Registration Act 2004 and bearing in mind the nature of the offences in relation to Charges 1, 2, 3 and 4 of Indictment D12648556.2 and the nature of the offence in Charge 2 in Indictment D12648556.3, I order, pursuant to s34(1)(c)(ii) of such Act, your name to be entered on the Register of Sex Offenders, with the length of the reporting period being the remainder of your life.
77 Further, pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth and/or blood sample until a sample of sufficient standard is obtained for the placement on the database. I must inform you that, if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable the forensic procedure to be conducted.
78 Anything counsel want to raise?
79 COUNSEL: No, Your Honour.
80 HIS HONOUR: Yes, take the prisoner.
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