Director of Public Prosecutions v McNamara

[2024] VCC 1258

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00681

DIRECTOR OF PUBLIC PROSECUTIONS

v

GERARD JOSEPH McNAMARA

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JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2024
DATE OF SENTENCE:	15 August 2024
CASE MAY BE CITED AS:	DPP v McNamara
MEDIUM NEUTRAL CITATION:	[2024] VCC 1258

REASONS FOR SENTENCE
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Subject:CRMIINAL LAW - SENTENCE

Catchwords:              Indecent assault on young male – Age – Suspended sentence – declining health – serious sexual offender – Found guilty after trial.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 s.6D(a), s.6E.

Cases Cited:R v Verdins & Ors [2007] VSCA 102; Stalio v R [2012] VSCA 120

Sentence:                  Total effective sentence of 36 months imprisonment with 31 months suspended for a period of 36 months. 132 days of pre-sentence detention to be reckoned as served.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Plummer	Office of Public Prosecutions
For the Accused	Mr T. Walsh with Mr C. Grant	Williams Winter

HER HONOUR:

1Gerard McNamara, on 5 April 2024 you were found guilty by a jury of your peers of seven charges of indecent act with a child under 16. The maximum penalty for these offences is 10 years' imprisonment.[1]

[1] Crimes Act 1958

2Given the jury’s finding of guilt, the evidence adduced at trial is the factual basis for sentencing. The following is a summary of that evidence.

3In 1995 you occupied a position of significant respect as a Marist Brother in a religious school. Your role as a school counsellor was to assist vulnerable and troubled students. It was in this role that you identified and preyed upon the particular vulnerabilities of the victim Allen Sikes,[2] who was then a student in his early years of secondary school.

[2]        A pseudonym.

4The first incident occurred when Mr Sikes and his friend were caught at school with cigarettes and sent to see the principal. When told that his parents would be informed, Mr Sikes became distressed and disclosed a history of physical discipline from his father. You were tasked with speaking with him and took him to your office. You told Mr Sikes that, as a result of his disclosures about his father, police would have to be called and his dad would get into trouble unless he let you physically examine him for signs of abuse. You got Mr Sikes to undress down to his underpants and ran your hands over his body, including over his crotch and bottom. You told him that you had to take some pictures to prove that he was not hurt.  You made him remove his underpants so that you could examine his genitals. You then played and squeezed his penis and pinched his testicles with your other hand for about a minute. After letting go of his penis you grabbed his butt cheeks.

5You left Mr Sikes to rest in your office and later that day you again began rubbing his back and told him that you were there to support him. You progressed to rub his inner thighs underneath his shorts. You put your thumb between his bum crack as your finger slid between his legs to his testicles.

6You arranged for Mr Sikes to continue to see you and reassured him that you were 'here for him'.

7On a subsequent occasion later that year, Mr Sikes told his sports teacher that he could not run in a school sports event because he was experiencing hip pain going down through his groin. You overheard this and told Mr Sikes you could fix the problem with massage. You massaged him over his boxer shorts and slid your thumb between his buttocks, touching his anus. You then had him roll over and rubbed Mr Sikes’ penis and testicles over his boxer shorts. You then put your hand inside Mr Sikes’ boxer shorts and massaged his penis as you massaged other parts of his body with your other hand.

8One morning a few months later Mr Sikes got into a fight with another student. You saw him sitting outside the head teacher’s office and told him to come into your office. As you massaged him you told Mr Sikes that the other student wanted him charged as a result of their fight and that you would try and stop that from happening. During this discussion you rubbed Mr Sikes’ bottom, genitals and testicles under his boxer shorts. Mr Sikes subsequently received an in-school suspension for fighting with the other student.

9Whilst your offending was initially opportunistic, you took advantage of a vulnerable young student and manipulated Mr Sikes into submitting to your touch. It is aggravating that you were effectively placed 'on notice' not to massage students in isolation some 10 years earlier by a fellow staff member.

10While you did not make clear threats towards Mr Sikes,  your offending was cloaked by the implicit support you were assuring him you would provide. In the first instance, Mr Sikes feared that his father would be reported to police if he did not allow you to examine, photograph and touch him. In the second incident, he was about to be subjected to disciplinary action when you took advantage of him, simultaneously assuring him that you would look after him.

11Whilst not the most serious example of this type of offence, the objective seriousness of your offending is high because it involved a significant violation of the trust accorded to you by your position. 

12You told police that you cannot recall Mr Sikes, but steadfastly maintain your denial of this offending. You show no remorse for your offending against Mr Sikes and your moral culpability is high.

13The victim described his enthusiasm at starting secondary school. Struggling against a backdrop of childhood trauma, he was succeeding both academically and on the sporting field. He held leadership positions but needed a trusted adult to listen and help him. Your offending devastated his budding confidence and promise. He felt as though he was treated like a piece of meat, and that he was not safe at school. His victim impact statement details the significant lifelong effects your offending has had upon him.

14You are now aged 86. This offending occurred some 30 years ago when you were aged 57 and 58.

15You attended a Marist Brothers’ boarding school in Sale from age 12, when your mother was treated with electroconvulsive therapy from which she never recovered. You experienced harsh discipline in the boarding school environment.

16At age 18 you became a Marist Brother and underwent one year of teacher training before being employed as a teacher throughout Victoria and NSW. Given your limited training you found teaching demanding and stressful.

17Between 1970 and 1975 you were deputy principal and sports master at a Marist Brothers College in Gippsland. Your previous sentences imposed by this court relate to offending which occurred during that time.

18In 1975 you were informed by a fellow staff member that you should cease providing sports remedial massage to children in isolation as 'one can easily be compromised'[3]. This was before your offending was brought to the attention of authorities.

[3]Reference of Mark Paul dated 20 May 2024

19In 1976 you had a one-year sabbatical before resuming your teaching duties. You undertook professional development to diversify your skill set to focus on student welfare. In 1981 you commenced studies in Clinical Pastoral Education and took up a role as a student welfare co-ordinator in 1986. Thereafter you occupied various religious and counselling roles.

20The first allegations of sexual offending were made against you in 2003 and, after pleading guilty to those offences, you were first convicted in 2005. You were then withdrawn from any active role within any school ministry.

21Your conduct has been overseen by the Marist order since these convictions. You are no longer permitted contact with children and must adhere to a stringent personal safety plan. I am told that you have adhered to this plan.

22You have voluntarily participated in a research project on clerical sexual offending by the University of Glasgow and are said to have provided candid insights to researchers about your own circumstances. Whilst you have not expressed remorse for this offending specifically, you have renounced similar conduct.

23Prior to your remand you lived in a Marist community in Templestowe. You remain well supported by the Marist Brothers.

24As stated above, you previously pleaded guilty to similar offences against approximately 19 other victims and were convicted by this Court. You were not sentenced for that offending until after you committed the offences in this case.

25It must be stressed that these other matters are therefore not technically 'prior convictions', for sentencing purposes, they are relevant to understanding the context of your pattern of offending and the other sentences which you have received. Accordingly, I will detail them.

(a)On 17 June 2005, you were sentenced by His Honour Judge Duggan following a plea of guilty to a wholly suspended term of 36 months’ imprisonment, suspended for two years for seven charges of indecent assault on a male. At the time of that offending, the maximum penalty for indecent assault on a male was five years' imprisonment. This offending involved the massage of seven male students in the early to mid-1970s.

(b)On 16 December 2016, you were sentenced by His Honour Judge Parrish following a plea of guilty to 16 months' imprisonment suspended for 16 months for three charges of indecent assault on a male in relation to two victims. That offending involved the massage of two male students.  

(c)On 3 September 2018, you were sentenced by His Honour Judge Allen following a plea of guilty to 36 months' imprisonment with 27 months suspended for 24 months, requiring that you serve nine months’ gaol. The offending there involved the massage of seven male students between 1970 and 1975. The offences included one penetrative act, where you inserted your thumb into the anus of a victim.

(d)On 15 May 2020, you were sentenced by His Honour Judge Ryan following a plea of guilty to 35 months' imprisonment with 28 months of that term suspended for 28 months, requiring you to serve seven months gaol, for four charges of indecent assault on a male and one charge of common assault. That offending also involved the massage of young male students in the 1970s.

26The effect of these sentences is that you have served two separate periods of imprisonment back in 2019 and 2020.

27You have been held on remand since the jury verdict in this matter on 5 April 2024.

28You have an array of health issues typical for a man of your age.  These conditions require regular review, medication and specialist assessments[4].

[4]See report of General Practitioner Dr Phillip Boltin dated 4 May 2024.

29You have received regular psychological counselling for the past 20 years and Psychologist, Peter Cook, has treated you since June 2023. Mr Cook states that you are experiencing difficulties consistent with an adjustment disorder with associated anxiety and some depression.[5] He opines that you risk deterioration if you experience a significant disruption to your previous regime of regular psychological treatment. Ms Shaune of Justice Health[6] gave evidence on your plea that you may not receive this in the custodial environment unless you choose to access such a service privately. I accept that the sixth limb in Verdins[7] case therefore has some application to mitigate the sentence that is required in your case.

[5]Report dated 20 May 2024.

[6]In her evidence given during the plea on 7 August 2024.

[7]R v Verdins & Ors [2007] VSCA 102

30When you were remanded in custody following the jury's verdict earlier this year, you reported to custodial health services a number of matters, including your declining kidney function.  Justice Health confirms that you will be able to receive dialysis within the custodial environment should you require it but you may have to move custodial locations from Hopkins Correctional Centre, in Ararat to a facility closer to St Vincent's Hospital in Melbourne. The prison system is equipped to cater for prisoners requiring a high level of medical care outside of the hospital.

31However, St Vincent's Hospital is the only tertiary hospital in Victoria, equipped to treat forensic patients with serious health needs requiring inpatient and outpatient medical care. Hopkins, where you currently reside, is equipped to house and support prisoners of advancing years and has a medical centre to treat the basic needs of such prisoners but if a prisoner requires specialised care such as regular dialysis, that would require lengthy prison transports to Melbourne, or indeed a shift in prison locations to a location such as Port Philip Prison which is equipped to provide such care.

32Ms Shaune of Justice Health[8] gave evidence that your health has been appropriately monitored and treated in custody and that you have been referred to a nephrologist for a specialist assessment of your medical needs, and an appointment is scheduled for October.[9] You will be triaged by the hospital and Justice Health does not have oversight of the waitlist and priorities of the hospital.

[8]Affidavit of 5 August 2024

[9]An email outlining answers given by Ms Shaune and dated 7 August 2024 was tendered by agreement.

33A recent letter from your treating GP, Dr Boltin[10] was obtained and forwarded to the Court after your plea was adjourned. Dr Boltin reported that you have suffered declining kidney function over the past six years. Recent tests in custody show that your condition has further declined in recent months.  As your long-term GP he would prefer that rather than having your renal decline assessed through the outpatient nephrology clinic at St Vincent’s Hospital, he would have preferred to have had the opportunity to offer you an appointment with a private specialist who could then arrange for your ongoing care and review or expedite your care in the public health domain if that was required. He notes that your recent eGFR readings made an early specialist review pressing, and that you should be assessed sooner than the scheduled appointment in October. Finally, he states that if your renal function continues to decline it will pose an increasingly serious risk to your health.

[10]In a letter dated 10 August 2024

34At the age of 86 the imposition of any term of imprisonment will represent a significant proportion of your remaining life span. Your treating general practitioner, Dr Boltin, states that “incarceration is having a negative effect on his health, and … has limited his treatment options”.[11]

[11]Report of Dr Boltin 10 August 2024

35Your Counsel, Mr Marsh submits that here there is a real risk that further extended incarceration will pose a serious risk to your health. Mr Plummer for the Crown accepts that imprisonment would be more burdensome for you than it would be for a younger person without your health issues, but that there is no serious risk that imprisonment will have a materially adverse effect on your health. Given the evidence from your treating doctor, I do not entirely accept this later submission. Your continued incarceration for an extended period does pose a real risk of effect on your health. The tyranny of distance and the onerous nature of prison transport for a man of your advanced age, coupled with the greater access to specialist medical care in the community are powerful factors in mitigation in your case.

36There has been a significant delay of nearly 30 years between this offending and your conviction. During that time, you have made significant progress towards your rehabilitation, and complied with the requirements of the Sex Offender Register since you were first placed on it in 2005. You have also continued to comply with the Marist Brothers Safety and Wellbeing plan which further restricts your conduct.

37An impressive array of references from fellow Marist Brothers, others involved with your spiritual community, family and friends were tendered to the Court. In full knowledge of your prior convictions, they spoke of your life of devotion and commitment to education, counselling and to the care of others. They speak of your deep remorse for your past offending and compliance with your personal safety and wellbeing plan. Individuals describe the various ways that you have grown as a person since your previous sentences were imposed.

38General deterrence warrants substantial weight for sexual offences committed against children. Denunciation and just punishment are very important sentencing considerations in your case. However, given your age, the time since your offending and your current lack of access to children, you have a negligible risk of re-offending. Specific deterrence and community protection are practically therefore of little relevance in your case.

39The Court is bound to have regard to current sentencing practices at the time of the imposition of this sentence, rather than at the time of the commission of your offending. However sentencing practices at the time of your offending are relevant to ensure that your punishment is just in all the circumstances.[12] Whilst it is difficult to determine with any accuracy what those historical practices were, I accept that the range of sentences imposed for offences of this type were generally lower in days gone by. The sentences, particularly the first two, which were previously imposed upon you are instructive in this regard. Significantly, I note that the maximum penalty for the charges before this court are double those for the charges of indecent assault on a male for which you were previously convicted.

[12]Stalio v R [2012] VSCA 120

40You fall to be sentenced, Mr McNamara, as a serious sexual offender. Protection of the community therefore is the principal purpose of sentencing,[13] and the Court must start from the point that every term of imprisonment must be served cumulatively.[14] However, noting the factors I have already referred to, the prosecution do not seek a sentence disproportionate to the gravity of your offending to achieve community protection and I will moderate orders for cumulation to the extent necessary to give effect to the principle of totality.

[13]Sentencing Act 1991 s.6D(a)

[14]Sentencing Act 1991 s.6E

41The Prosecution concede that given the passage of time, and your pressing health needs a partially suspended sentence is within range. Your Counsel concedes that no sentence other than one involving some term of immediate of imprisonment is warranted in your case.

42Your offending occurred before suspended sentences of imprisonment were abolished as a sentencing option for serious offences[15] in Victoria. It should be stressed that a suspended sentence is considered a term of imprisonment at law.  However, suspended sentences allow a court to suspend the whole or part of a sentence of imprisonment for a specified period.  During that operational period you will be free to live in the community on the condition that you do not commit a further offence punishable by imprisonment. If you breach this condition the suspended prison sentence will be activated unless there are exceptional circumstances.

[15]For offences occurring after 1 May 2011

43Your prior offending occurred between 1970-1975. Whilst this offending occurs outside of that time frame, Mr Marsh submits on your behalf that had these offences been dealt with alongside of any of your other offences, any additional imprisonment required to account for the current offending would have been modest. You pleaded guilty to that other offending and you contested this matter, and accordingly, I do not accept that any potential period of cumulation which may have been accorded to these entirely discrete offences if they were dealt with earlier, would have been 'modest'.

44Mr McNamara, I have regard to these various competing sentencing considerations. Your offending is serious but occurred some 30 years ago and you fall to be sentenced without regard to those other criminal convictions. Powerful mitigatory factors have application in your case. Given your advanced years and pressing health concerns, I am satisfied that it is merciful to partially suspend your sentence. I note that that constrains the maximum sentence I can impose in your case.

45You have been found guilty of seven Class 2 offences. You must therefore comply with reporting obligations under the Sex Offenders Registration Act for life. Due to your previous convictions for registrable offences you are already required to report under this scheme for life.

46Gerard McNamara, I sentence you as follows:

47I formally declare that you are sentenced as a serious offender.

48On Charge 2, indecent act with a child under 16, I convict and sentence you to 18 months' imprisonment.  This will be the base sentence.

49On Charge 1, indecent act with a child under 16, I convict and sentence you to 12 months' imprisonment.  Two months of that term is to be served cumulatively upon the base.

50In respect of Charge 3, indecent act with a child under 16, I convict and sentence you to 10 months' imprisonment.  Two months of that term is to be served cumulatively upon the other sentences imposed in this case and the base sentence.

51In respect of Charge 4, indecent act with a child under 16, I convict and sentence you to 14 months' imprisonment.  Four months of that term is to be served cumulatively upon the other sentences imposed in this case.

52In respect of Charge 5, indecent act with a child under 16, I convict and sentence you to 15 months' imprisonment, with three months to be served cumulatively.

53In respect of Charge 6, indecent act with a child under 16, I convict and sentence you to 17 months' imprisonment, with three months of that term to be served cumulatively.

54In respect of Charge 7, indecent act with a child under 16, I convict and sentence you to 18 months' imprisonment with four months of that term to be served cumulatively.

55The total effective sentence therefore is 36 months' imprisonment.

56Mr McNamara, I am going to order that you serve five months imprisonment and I will suspend the remaining 31 months for a period of 36 months.

57I reckon as served the period of 132 days of pre-sentence detention, not including today, as hereby declared as having already been served in respect of this sentence and I order that such declaration and its’ details be entered into the court record.

58What that means, Mr McNamara, is that you are to spend five months in custody, so the amount that you have left to serve is five months minus 132 days. 

59I formally order pursuant to s34 of the Sex Offenders Registration Act that the length of reporting period is for life.

60Mr McNamara, is you will be given written notice of your reporting obligations under the Sex Offenders Registration Act.  That will be forwarded to the prison where you are presently incarcerated.  You will be required to sign an acknowledgement that you have read and understood those obligations.  I will ask your lawyers to make sure that they speak to you and reinforce those obligations to you.

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