Director of Public Prosecutions v Jennings

[2014] VCC 631

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-00718

DIRECTOR OF PUBLIC PROSECUTIONS

V

JAMES JENNINGS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATES OF TRIAL:	3  -6, 10 – 14, 17 – 19, 21, 24 February 2014
DATE OF PLEA  and SENTENCE:	29 April 2014; 30 April 2014
CASE MAY BE CITED AS:	DPP v Jennings
MEDIUM NEUTRAL CITATION:	[2014] VCC 631

REASONS FOR SENTENCE

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Subject: Criminal law – sentence after trial

Catchwords: Sexual offences – criminality classified as mid-range – breach of trust– aggravating factors  - 50 years later – delay - social rehabilitation of the victims – age of offender (now 81) – serious sexual offender – valuable character references – general deterrence .

Legislation Cited: Sentencing Act 1991

Cases Cited: DPP v DDJ (2009) VSCA 115 - DPP v Toomey (2006) VSCA 90

Sentence: 3 years, of which 2 years and six months are suspended, operational period 3 years  

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Note: pseudonyms have been used for the complainants

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Borg	OPP
For the Offender	Mr M. Hird	Cahills

HER HONOUR: 

1James Patrick Jennings, you have been found guilty by a jury of five charges of indecent assault on a male person under the age of 16.  You committed the offences between 1964 and 1967 at  a country boarding school for boys where you were a Roman Catholic priest with teaching duties as well as other duties from time to time, including being in charge of dormitories.  The maximum penalty for these offences was ten years' imprisonment. 

2Two complainants Michael Ramsay[1] and Allen Whitney[2] were aged 12 and were boarders in Form 1 at the school when the offending occurred.  The third complainant, Donald Raymond[3] was aged 13.  Ramsay was from a farm and he was shy and naïve.  Generally, the boys at the school were well behaved and required little discipline.  These three boys were all small for their age; Ramsay being the smallest in the class and Whitney describing himself as being tiny. 

[1] Pseudonym

[2] Pseudonym

[3] Pseudonym

3At the time of the recent trial all the complainants were men in their 60s and each of them gave evidence and were cross‑examined at length.  Charge 1 occurred when you directed Ramsay to go to your room where you asked him to sit on your lap.  He did so and then you undid his fly, took out his penis and masturbated him.  He ejaculated and you told him that he owed you one.  You went to your bed and asked Ramsay to masturbate you.  You took his hand and showed him what to do.  He then masturbated you to ejaculation.  That is Charge 2.

4As Ramsay went to leave the room, you told him he had committed a sin and he could not leave until you had heard his confession.  You got him to kneel down beside you and beg for forgiveness.  At later times, after similar occurrences, you told him he had to confess to another priest and told him to go and do that, which he did. 

5About three weeks after the first incident, this offending was repeated and the act of masturbating Ramsay on that occasion is Charge 3.  Other similar offending against Ramsay continued to occur throughout 1964, the evidence of which was led as uncharged acts during the trial.  The charges in relation to which you have been found guilty are not representative charges and so plainly, I am sentencing you only in relation to the charged offences. 

6In 1966 when Ramsay was in Form 3 and was in the senior dormitory, you were the dormitory master and used your position to allocate Ramsay to a bed close to your room.  On a weekly or fortnightly basis, you would get Ramsay out of bed and take him to your room and you would masturbate him and get him to masturbate you.  These are also uncharged acts. 

7It was many years before Ramsay reported the matter to anyone.  In 1997 he attended a mass, at which the parish priest made an apology to the congregation for the abuse of children by the Catholic clergy.  Ramsay told the priest about the abuse and as a result, he contacted Towards Healing, the body set up by the church to deal with allegations of sexual and other abuse.  Ramsay took part in a mediation conducted by a psychologist who relayed to you, the complaint made by Ramsay. It appears that the jury accepted that your acknowledgement noted by the psychologist was an admission that the complaint was true. 

8Allen Whitney was a boarder in Form 1 in 1966, when he was asleep in the dormitory at the school and he awoke to find you sitting on his bed holding his penis.  He asked you what you were doing and you did not reply, but walked away.  This is Charge 4.  Mr Whitney said that he told another priest, Father Canty, what was done to him the next day, but nothing was done about it.  Father Canty gave evidence but could not recall that. 

9In 1967 Donald Raymond aged 13 was in the school sickbay when you approached and went to his bed.  You pulled back the blankets and began to fondle his penis inside his pyjamas.  You continued to do so for about five minutes; that is Charge 6.  He said this sort of touching occurred on at least one other occasion.   Raymond told Father Ryan, another priest at the school, within a month of the offence.  Father O'Keefe, the principal, was informed, whether by Father Ryan or by one of the senior boys, it is not certain.  Father O'Keefe flew to Sydney the next day and reported it to the Provincial and returned to Bendigo with a letter from the Provincial instructing you to come to Sydney.  You left the school immediately.

10In 1976 you left the priesthood and for many years until retirement, you were employed as financial controller at a large Sydney school.  None of these offences came to the notice of the police until 2009 and 2010.  It should be noted that Mr Ramsay did not go to the police at all.  He had written a report for the Vincentian Order after he had been involved in the process known as Towards Healing.  The police found this report when they searched the office of the organisation and contacted him.  Likewise, Raymond was also contacted by the police. 

11The complainants gave evidence as to how they were affected by your offending and Mr Ramsay and Mr Whitney each provided a victim impact statement.  That of Mr Ramsay was read to the court.  They are moving documents and I shall spend some time describing them.  The abuse of Mr Ramsay was very serious indeed and his suffering has been commensurate with the gravity of your offending against him.  For the first 33 years he carried the burden alone, lacking self‑esteem and struggling with personal issues profoundly affecting his family life.  But for an apology from a Regional Bishop read to the congregation by the local parish priest at that time, Mr Ramsay might never have disclosed the abuse to anyone. 

12When eventually the police became involved, Mr Ramsay agreed reluctantly to give evidence and he found the process through the courts very difficult.  He still feels exploited, humiliated, ashamed and embarrassed and he lacked self‑esteem.  He feels he was deprived of his adolescent years, of the ability to achieve his academic potential and of the opportunity to discover his sexuality himself. 

13The effects upon Mr Whitney was similar in many respects.  As a boy, he had high expectations of achieving professional status, but his academic progress was stymied by his experience of the abuse you perpetrated.  He lost confidence and his religious faith and said he felt completely worthless.  He went on to become a successful tradesman and he and his wife brought up four sons who have all done well, but he was extremely anxious for them growing up and fears that he was an overly harsh disciplinarian as a result of his own experiences.  He finds himself unable to reflect on the past as his siblings do, as it is too painful. 

14Mr Raymond did not provide a victim impact statement, but said in evidence that at the time of the abuse, he was confused and did not know if what you did was wrong or not.  He never told anyone in his family, then or later, because he did not wish to revisit those times.  It should be noted than none of the three complainants knew each other and each knew nothing of the others' statements to the police. 

15There is a number of aggravating factors that I must take into account.  The first is the gross breach of trust that these charges represent.  You were entrusted by the boys' parents and by the school with the safety and wellbeing of the boys who were country boys boarding at the school.  You were in fact in “loco parentis”.  They saw their parents infrequently and even then, they were constrained from telling their parents because they thought they would not be believed, such was the reverence with which priests were regarded. 

16Each of the complainants said in evidence that they were aware of the extent of the sacrifice their parents had made to send them to the school, and they did not want to disappoint their parents as one of them put it.  When Whitney told another priest, nothing was done and consequently he told no one the next time he claimed he was abused.  That second incident was the subject of Charge 5 of which you were acquitted and so I only mention it with reference to the evidence as to the reporting of the abuse. 

17A further aggravating factor, close in character to the breach of trust was the admonition you gave Ramsay after the episode of masturbation; that he had committed a sin and so would have to beg forgiveness and confess before another priest as well.  The hypocrisy of this is plain, but apart from that it was gross manipulation of a young boy's emotions and cruel exploitation of his conscience and religious faith. 

18The aggravating factors are to be taken into account in assessing the heinousness of these crimes.  Charges 1, 2 and 3 are the most serious, being frequent and sustained assaults involving masturbation.  That is in turn, less heinous than acts involving penetration for example, but more serious than the instances of penile fondling, which are Charges 4 and 6 and which were isolated rather than sustained.  The age difference is also an important factor, that the complainants were physically small boys aged 12 or 13, and that you were a well‑built mature adult aged between 31 and 34 at the relevant times, almost three times their age.  You were in a position of power and authority and they had no one to whom they could turn.  You knew the offending was very wrong and so your moral culpability is high. 

19In combination, these factors raise the seriousness of the offences to a higher level in the range.  In my view, this places Charges 1, 2 and 3 in at least the midpoint of the range and Charges 4 and 6 just below that point. 

20Both the mitigating factors on the one hand, and the need for general and specific deterrence on the other hand, must be properly reflected in the sentence I impose. The importance of general deterrence lies partly in the fact that such crimes are difficult to detect and often only come to light many years after the victims reach adulthood.  As the court said in a decision of Stalio v R [2012] VSCA 120 at par 73

"The abuse of the power relationship and its long‑lasting consequences, contribute to and are reflected in the community's abhorrence of the offending."

21More broadly, others who may be inclined to offend in this manner must understand that they will be subjected to the stern disapproval of the court and to harsh punishment.  In relation to specific deterrence, your age and the fact that your health is no longer robust, are relevant factors, as is your demonstrated commitment over many years to the community.  You had a hip replacement operation almost a year ago and you have had a heart pacemaker in place for some years, which requires regular monitoring.  You are prescribed Warfarin to deal with the risk of deep‑vein thrombosis. 

22Recent medical reports indicate that by reason of your advanced age and these conditions, you are at some risk of untoward medical events whilst in prison and it follows that your experience of prison will be more onerous for you than for younger and more robust inmates. 

23The psychologist who assessed you recently considered that you are at a low to moderate risk of re‑offending.  You have no prior convictions and there has been no subsequent offending.  You have helped your wife bring up her three children, one of them having been a very young boy when you married.  Your large extended family and a number of friends have written highly complimentary references for you and you have always enjoyed the utmost trust of theirs.  You have made considerable contributions to the community. 

24The risk of re‑offending can be said to be minimal, so your chances of rehabilitation are good, notwithstanding that by reason of having contested the case and your continued denial, there can be no remorse and no insight into your offending.  You told the psychologist, Dr Kennedy, that, "It's 50 years since these things happened."  When Dr Kennedy read that back to you, you accepted that you had said that.  It might be inferred from that statement and answer of yours that you accept that you offended, but you are in a state of profound denial. 

25That denial seems to have led you to accuse the complainants of having falsified the charges in order to gain financially when there is no evidence of that.  Indeed, the evidence is that each of them made their complaints individually, without the knowledge of the others and indeed, they have never met. 

26A reduced need for specific deterrence and good chances of rehabilitation do not diminish the need for appropriate punishment, which in this case and others like it, requires immediate imprisonment.  I was referred to the decision in the case of DPP v.Tomey [2006] VSCA 80,  a case dealing with the sexual abuse of children where it was said,

"The courts have recognised that those who commit crimes against one of the most vulnerable groups in society, which almost invariably have long‑term effects on their victims should be severely punished."

27The court went on to say that delay in these cases is not unusual and,

"…nor is the otherwise blameless life of the offender.  The crimes themselves and their consequences demand a significant sentence.  General deterrence and denunciation of the respondent's conduct are of the first importance."

28The court in that case then spelt out with reference to the decision in the case of DPP v DJK [2003] VSCA 109,  the concept of social rehabilitation.  That is, the imposition of a sentence to assist in the social and personal recovery of the victim.  The court said the sentence:

"Signifies the recognition by society of the nature and significance of the wrong that has been done to affected members.  The assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator." Ibid at para 18.

29Mr Jennings, I will ask you to stand now, please.  Having taken all of these matters into account, I sentence you to the following terms of imprisonment.  For each of Charges 1, 2 and 3, 18 months.  For each of Charges 4 and 6, ten months.  The sentence for Charge 1 will be the base sentence for the purposes of cumulation.  I order that six months of each of the sentences for Charges 2 and 3 and three months for each of the sentences for Charges 4 and 6 be served in cumulation upon the base sentence.  This results in a total effective sentence of three years. 

30Mr Hird submitted on your behalf that even though general deterrence is important, the reduced need for specific deterrence is your case permits me to wholly suspend the prison sentence I impose.  I have concluded that it is appropriate in view of the mitigating factors I have taken into account that two years and six months of that sentence be suspended, requiring you to serve six months before being released and I make that order.

31The operational period of the suspended sentence will be three years.  In making this order, I have taken into account the principle of totality in order to avoid the sentence being crushing upon you.  I must advise you that should you offend again during that period of suspension in any way, which could attract a prison term, you will have breached the suspended sentence and then must serve the balance of the sentence, unless there are exceptional circumstances as to why you should not. 

32You have been in custody for 65 days, not including today and those days are to be reckoned as already served and I shall cause that to be noted on the court record. Because you have been sentenced to prison for the first two charges, you are to be sentenced as a serious sex offender for each of the other charges. However, the prosecution does not, under s.6D of the Sentencing Act seek a sentence that is disproportionate in order to protect the community.  I shall note your status in this regard on the court record. 

33Under the Sex Offenders Registration Act you are required to inform the police every year of your details for the rest of your life after your release. 

34Ms Borg are there any other matters that I have neglected or omitted?

35MS BORG:  Just to make it clear that it is life registration.  I know Your Honour said every year, but I just thought - - -

36HER HONOUR:  I think what I said covers it, for the rest of Mr Jennings' life.  Mr Hird, anything else?

37MR HIRD:  No, thank you. 

38HIS HONOUR: , Mr Jennings is required to sign the notice in relation to the Sex Offenders Registration Act. Do you want to look at that, Mr Hird, or are you satisfied?

39MR HIRD:  I will. 

40HIS HONOUR:  There is one other matter that I need to attend to and that is before the sentence is released for publication, the names of the victims will be replaced by pseudonyms and counsel will be sent an email to that effect, with the pseudonyms.  If there is any objection, that will be noted, but things might move quite quickly so I would be grateful if that could be attended to as soon as possible.  Thank you. 

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