Director of Public Prosecutions v McNamara
[2020] VCC 634
•15 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-19-02183
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GERARD JOSEPH McNAMARA |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 May 2020 | |
DATE OF SENTENCE: | 15 May 2020 | |
CASE MAY BE CITED AS: | DPP v McNamara | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 634 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: indecent assault on a male – age – just punishment - rehabilitation – suspended sentence – remorse
Legislation Cited: Sentencing Act 1991
Cases Cited: Sayer v R [2018] VSCA 177; R v Bruce (1998) 71 SASR 536; Gulyas v
Western Australia (2007) 188 A Crim R 539
Sentence:35 months' imprisonment with 28 months suspended for a period of 28 months - s6AAA: 5 years’ imprisonment with a minimum term of 2 years and 6 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Sonnet (Plea) Ms G. Hersch (Sentence) | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr P Smallwood with Mr C Grant | William Winter Solicitors |
HIS HONOUR:
1 Gerard McNamara, on Friday, 1 May 2020, you pleaded guilty to Indictment K11923434 containing five charges, being four charges of indecent assault on a male (Charges 1, 2, 4 and 5) and one charge of common assault (Charge 3). Your offending occurred between 1973 and 1975. Charges 1 and 4 are rolled-up charges which means that in sentencing you I must impose a sentence that reflects the totality of your offending in respect of those charges.
2 The maximum penalty for each of the offences is 5 years’ imprisonment.
3 You are without prior conviction, but you have been sentenced previously on three occasions for similar offending.
4 On 17 June 2006, you were sentenced by his Honour Judge Duggan to 36 months’ imprisonment that was wholly suspended. The offending for which you were sentenced involved seven victims that resulted in seven counts of indecent assault on a male under the age of 16 years. Three of the counts on the presentment contained representative charges. Your victims were aged between 11 and 13 years.
5 As in the present case, your offending occurred when you were the sports master and headmaster of St Paul’s Marist Brothers School, Traralgon.
6 On 16 December 2016, you were sentenced by his Honour Judge Parrish to a wholly suspended sentence of 16 months’ imprisonment for offending against two brothers aged between 11 and 12 years and 13 and 14 years respectively when they were students at St Paul’s. Your offending occurred in 1975 when you were the principal at St Paul’s. Your offending resulted in three charges of indecent assault on a male under the age of 16 years.
7 Finally, on 3 September 2018, you were sentenced by his Honour Judge Allen to 36 months’ imprisonment that was partially suspended in that you were ordered to serve 9 months’ imprisonment immediately upon sentence. You have completed the custodial aspect of this sentence but the operational period of the suspended sentence will conclude on or about 2 September 2021 and so you are still undergoing that sentence.
8 The offending the subject of his Honour Judge Allen’s sentence occurred between 1970 and 1975 at St Paul’s College. His Honour Judge Allen sentenced you in respect to an indictment containing seven charges in respect of four victims who were aged between 11 and 15 years. Two of the charges were representative charges while charge 5 was a penetrative offence where you inserted your’ thumb into the anus of your victim. In addition, his Honour Judge Allen sentenced you in respect to an appeal to the County Court from the Magistrates’ Court for offending against your nephew.
9 Tendered as Exhibit A and read aloud in Court was the amended summary of prosecution opening for plea. In respect to the victim the subject of Charge 1, you offended against him on three separate occasions and this is a rolled-up charge. In respect of the first incident, at the beginning of 1973 when the victim was aged 14 years, he injured his knee in a football match. You directed the victim to the sports shed and told him to lie down on a rub down table. Using liniment, you massaged the victim’s right thigh and worked your way up his inner thigh towards his underwear. You told the victim to remove his underwear which he did. You placed more liniment on your hands and commenced to rub the victim’s thigh up towards his groin area. In doing so, you rubbed past his genitals and touched his testicles rubbing from one leg over the testicles and down the inside of the other leg on the victim’s inner thigh in one motion.
10 You asked the victim to move his penis to one side and you applied oil to your hands and rubbed the victim’s pelvis area just above but not on his penis. You continued to rub the victim’s thigh, touching the bottom of his penis and then back down the other leg, repeating the motion back and forth. As a result of your actions, the victim’s penis became erect. This incident lasted approximately 5 minutes.
11 Approximately a month later when the victim was playing football and you were the umpire, the victim experienced muscle stiffness in his leg. You observed this and instructed the victim to go to the sports shed and hop up onto the massage table and remove his shorts. In the shed, again you rubbed liniment on your hands and commenced to rub the victim’s leg commencing at his knee and working you way up into his inner thigh area towards his underwear. Again, you instructed your victim to remove his underwear and he complied. You rubbed his groin area as well as his thigh on the inside towards the upper thigh. You rubbed past his genitals, touching his testicles. Effectively, you rubbed the victim’s thigh up and along the inside of his leg until you reached his groin and genital area in one continuous movement. Thereafter you rubbed the victim’s scrotum and penis, rubbing up and down his inner thigh as well, again in one continuous movement. You continued this activity until the victim’s penis was erect. This incident, like the last mentioned, lasted approximately 5 minutes.
12 The third incident in respect to this victim occurred in early 1974 when he was aged about 15 years. The victim again ended up in the sports shed with you. The victim was naked from the waist down on the massage table. Again, you massaged his inner thighs up and around his groin and pelvis area in a continuous movement. In the process, you touched the complainant’s genitals, scrotum and penis. Again, the victim’s penis became erect and then you ceased the massage.
13 The victim first revealed your offending against him to his wife in 2005 and made a complaint to police in October 2018.
14 The victim the subject of Charge 2 was 13 years of age when you offended against him in 1975. The victim was playing at lunchtime with another older student practising karate. Ultimately the victim was kicked in the chest and this caused him to fall to the ground. The victim was taken to a small room in the brothers’ quarters and found himself alone in that room with you. You instructed your victim to remove his shirt and lay on the bed so that you could examine him. Using both hands, you rubbed the complainant’s chest. You moved your hands down towards the area of the victim’s naval and the victim told you that he was not hurt in that area and that he was only hurt on the chest. You told the victim to relax. Thereafter you moved your hands lower on the victim’s body and placed a hand down the front of the victim’s underwear and touched the shaft of his penis. You quickly removed your hand and left the room telling the victim to wait there until you returned. The victim remained in the room until the vice principal came into the room and told the victim to leave and go home.
15 The complainant the subject of Charge 2 made a complaint to police in April 2019.
16 In respect to Charge 3, your victim was aged 13 in 1975 when you assaulted him. Your victim had been misbehaving in class and was sent out of the classroom. You came across your victim and put your arm around him and pulled him close to you so that his back was pulled up against your stomach. You then punched your victim with a closed fist to the left side of his ribs. You whispered to your victim, “naughty boy” and told him to return to class.
17 The victim the subject of Charge 3 made a complaint to police in November 2018.
18 Charge 4 is a rolled-up count that relates to your criminal conduct towards the victim in 1975 when he was but 13 years of age. The first of the four instances of offending against your victim occurred in circumstances where you found him in a school corridor during a morning break and directed him to go to the monastery. Whilst in a room within the monastery you directed your victim to undress as he needed a massage. You told your victim to remove his underwear and lay on his back. Consistent with your previous criminal conduct, you massaged your victim’s lower and upper legs until you reached the top of his thighs. You then massaged around your victim’s testicles. You directed your victim to move his penis to one side and then back to the other side whilst you continued to rub his groin area. You massaged around your victim’s testicles in a circular motion. Your victim recalls a strong smell that he later recognised as “Dencorub”. This incident lasted approximately 15 minutes.
19 In respect to your second occasion of offending against the victim the subject of Charge 4, you directed him once again to go to the monastery. You told your victim to get undressed and lay on the table. The complainant took off all his clothes except his underwear. You instructed your victim to remove his underwear and he complied. You directed your victim to move his penis to one side and then massaged around his lower abdomen and testicles. Thereafter you directed the victim to move his penis to the other side and you rubbed around the other side of his inner thigh and testicles. You then told your victim to get dressed and go back to class.
20 The third incident in respect of this victim occurred some weeks after the second incident. An older student directed your victim to see you in the monastery. When your victim arrived at your office, you directed him to the room where you had earlier offended against him. Your victim describes your conduct towards him as “It was very similar to the other times”. In short, you massaged around his groin area and rubbed around the victim’s testicles, again directing him to move his penis from one side to the other. On this occasion, you touched your victim’s penis. You rubbed your hand up and down the side of the complainant’s penis as you were massaging around his testicles. You then massaged the complainant’s penis using your hand to rub his penis up and down. This incident lasted somewhere between 15 and 20 minutes. When you had finished with your victim you told him to get dressed and return to class.
21 The fourth incident included in the rolled-up charge commenced in similar circumstances to the previous incidents where you had an older student direct your victim to attend on you in the monastery. Again, your victim was taken to a room where he got undressed and lay on a massage table. Again, you massaged your victim’s lower legs moving inevitably upwards to his thighs and then to his genital area. Using both your hands, you rubbed around the victim’s testicles. In the process you brushed along the sides of the victim’s penis and then moved your hand up and down on the victim’s penis. Again, you used “Dencorub” and this offending lasted somewhere between 15 and 20 minutes. Your victim left the room and commenced crying, wondering why this was happening to him.
22 The victim the subject of Charge 4 disclosed your offending to his wife in 2005 and made a complaint to police in November 2018.
23 The victim the subject of Charge 5 was 13 years of age when you offended against him. In 1975 your victim injured his back playing football. You sent your victim to your office. Your victim maintained that he was “okay” but you directed him into your office and closed the door. You asked your victim to point to the site of his injury and your victim pointed to his right lower back. You told your victim that you wanted to see if there was any bruising. You lifted your victim’s shirt and started rubbing his side where it was sore. Your victim asked you what you were doing but you told him “shut up” or words to that effect. You told your victim that you needed to massage him and instructed him to remove his shirt. Your victim replied, “I'm okay, I don’t want to.” Despite this, you again instructed your victim to remove his shirt, which he did. You recommenced to rub your victim’s back and told him to remove his pants as it would make it easier to massage him. Your victim refused. Your victim recalls that you pushed down his pants and started rubbing his back. You then rubbed your victim’s backside over his underwear and then placed one hand down the complainant’s underwear and touched his backside. You also used one of your hands to rub up the inside of the complainant’s legs and in doing so brushed against his testicles.
24 Your victim tried to step away from you, but you pulled him back. You continued to massage your victim on his backside underneath his underwear. Your victim could feel that you had an erection and that you were pushing against him. In this process you moved your body up and down against your victim. Your victim eventually pushed you backwards with both hands as hard as he could, you stumbled backwards, and your victim grabbed his clothes and ran from the room.
25 The victim the subject of Charge 5 complained to the police in January 2019.
26 On 28 March 2019, you were interviewed under caution at Langi Kal Kal Prison whilst undergoing the custodial aspect of the sentence of his Honour Judge Allen. You answered “no comment” to most of the questions put to you in respect to the allegations the subject of the charges on the indictment. However, in response to Question 164, “Do you think your behaviour with the students was appropriate?”, you answered, “Times were different and I don’t wanna to go into all the implications of that …”. And at Question 167, when you were asked, “Are you sorry for what happened?”, you responded in part, “… I think in a lot of cases we do things the way it was done to us.”
27 On 17 July 2019, you were charged on summons in respect to the offences the subject of the charges on the indictment.
28 Tendered as Exhibits B through to F, both inclusive, were the Victim Impact Statements of the victims the subject of Charges 1 through to 5. The victims the subject of Charges 1 and 3 took the opportunity to read their Victim Impact Statements. The balance of the Victim Impact Statements were read aloud in Court by the Crown prosecutor who appeared to prosecute this matter, Mr Sonnet.
29 It is not possible to do justice to each of the Victim Impact Statements in these reasons. Suffice it to say that each of your victims has been profoundly and adversely affected by your conduct towards them as children. They all experience a sense of shame even as mature men despite at the time of your offending they were innocent child victims to which no shame could possibly attach. They each feel that they have underachieved in their lives. This underachievement is felt to have occurred in many aspects of their lives from their employment, to relationships, marriages and how they interact generally with work colleagues and people that they meet in a social setting. Some of your victims have undergone counselling and/or psychological and psychiatric treatment as a result of your offending. By your criminal conduct, you have caused your child victims to live well into their maturity suffering from the psychological consequences of your abhorrent conduct.
30 Your offending constituted a breach of the trust placed in you by your victims, their parents and your religious community. You exploited your position of power as an adult, a teacher and as a Marist brother. Your offending was committed over 2 years but predominantly in 1975 and in respect to 2 of your victims repeatedly. From the depositions and Victim Impact Statements it is plain you were notorious for this type of conduct amongst the pupils at St Paul’s College and that your victims were known as such and were ridiculed by their peers because of it. (See also the reference of Br Paul Gilchrist dated 8 February 2018) Your offending was premeditated in respect the victim the subject of charge 4 and invariably occurred in circumstances where you deliberately orchestrated being alone with your young and vulnerable victims. Your offending is a serious example of offending of its kind.
31 Mr Smallwood of Counsel led Mr Grant of Counsel on your behalf. Tendered as exhibits on the plea were Counsels’ submission on sentence (Exhibit 1) together with plea materials which comprised nine medical reports, 13 testimonials and two Safety and Well Being plans signed by you on 25 March 2020 and 21 May 2018 (Exhibit 2). Both in his written and oral submissions, Mr Smallwood acknowledged that your offending was clearly serious. Further, he acknowledged that the gravity of your offending called for a sentence of imprisonment. However, he submitted that such term of imprisonment should be wholly suspended. Mr Smallwood relied upon your early plea of guilty and its utilitarian benefit as well as it being some evidence of your remorse, a topic to which I will refer later. Further, Mr Smallwood relied upon delay in the sense that since 1975 there has been no suggestion that you have reoffended and that you have continued in your vocation as a Marist Brother at various schools and institutions and ultimately submitted that in that time you have rehabilitated yourself. Further, Mr Smallwood relied on the fact that you had not breached any of the sentences imposed upon you in 2005, 2016 and 2018 and that since 2004, you have been placed and continue to comply with safety and wellbeing plans at the request of your Order that place restrictions on your conduct.
32 Mr Smallwood further relied upon your age and general ill health together with your conduct since 1975 to support a submission which I accept that specific deterrence has no role to play in the exercise of my sentencing discretion. As well Mr Smallwood relied on your age and ill health to support the submission that these factors could justify a less severe sentence than otherwise might be the case. (See Gulyas v Western Australia (2007) 178 A Crim R 539)
33 Brother McNamara, you are 82 years of age and suffer many of the maladies that affect elderly men. You have suffered from cataracts however, recent cataract surgery proved successful and while you still have glaucoma, a consequence of the surgery was that you no longer need to treat your glaucoma. You have prostate cancer but like many men you will die with it, not of it. The condition is managed by a urologist. You suffer atrial fibrillation that is treated by anti-coagulant, blood pressure and other medication. You also suffer from hypertension and Grover’s disease, a skin disease that affects your lower legs intermittently and that is treated with cream as is your rosacea. You are generally iron-deficient and have a family history of bowel cancer and you suffer from renal difficulties, all of which are monitored and/or treated. You are also medicated for anxiety and depression. In plain terms, you are not a well man.
34 However, by reference to the report of Mr Aris psychologist dated 13 April 2020 in respect to your mental health after your release from prison, he opines:
“My assessment of Gerard following his release was quite favourable all things considered. He was able to maintain his supports via frequent visits from outside and maintenance of written correspondence. In custody he was able to sustain good interpersonal relationships and solace in reading and spiritual practice. Overall, he was satisfied with the contribution he made to prison life. His adjustment since release was good and indicated by his scores on the DASS21 with all subscales (Depression, Anxiety and Stress) on in the border of normal to mild range and this has also been the case as recently as the last time I assessed him on this instrument on 28/2/2020.”
35 Having considered the contents of the medical and psychological reports, I conclude that neither your physical nor mental health precludes you from serving a term of imprisonment.
36 Your attitude to your offending is not clear. Many of your referees write as to your expressions of remorse. However, Mr Aris in his report noted:
“Rather I have surmised that during the period of his offending he was ignorant and possibly naive of how the pursuit of his interest in the physical therapies exercised in the context of his role as teacher/principal constituted a safety risk for children.”
37 Later in his report when dealing with institutional factors that may have contributed to your offending, he opined:
“One questionable coping response to such prolonged vocational stressors at the time was that he pursued an alternative interest/or skill set in the healing arts however he was unfortunately and patently very misguided in his manner of exercising this with all of its inherent blurring of role boundaries and attendant risks.”
38 At the time of your offending you were in your middle thirties. You were a mature man. To suggest that you did not consciously gain sexual gratification from your offending nor understand its wrongfulness is unsustainable based on the depositional material.
39 Brother Peter Carroll, the Provincial of the Australian Province for the Marist Brothers, was a referee for you in the 2016 plea, and his reference formed part of the references tendered on your behalf on this plea. In his reference of June 2016, Brother Carroll wrote of your expression of regret and sorrow in respect to the offences for which his Honour Judge Parrish sentenced you. Brother Carroll, as Provincial of your Order, was also the signatory to each of the two personal safety and wellbeing plans tendered on your behalf and signed by you on 21 May 2018 and 25 March 2020 respectively. In the latter of these two plans at page 2, the following appears:
“The MO in relation to complainants of indecent assault involved your massaging complainants after sport (generally after suffering an injury) either in the sports equipment shed, in a room in the brothers’ dormitory or in your office. Although you have pleaded guilty to many of the complaints against you, you continue to deny any sexual impropriety in relation to the allegations.”
40 When this matter was raised with Mr Smallwood, he informed me that your instructions were that you do not know how the sentence which refers to your denial of any sexual impropriety appears in the plan of 2020. Further, Mr Smallwood informed me that you instructed him that the quotation above does not represent your attitude to your offending. No evidence was called to support those instructions.
41 It may be that at the time of signing the 2020 plan you were unaware of the contents of the document. However, the passage to which I have referred is consistent with your response to Question 164 and partial response to Question 167 of the record of interview where the allegations that found the counts on the indictment were put to you.
42 Further it is consistent with the extracts from Mr Aris’s report and the reference from Brother Gilchrist
43 In his sentencing remarks, his Honour Judge Allen accepted that there was a level of remorse that you have expressed to numerous people. He allowed for the prospect that your remorse may not be completely comprehensive and that there may be a range of psychological factors that explain that, “such as an inherent sense of denial”.
44 The most favourable finding that I can make is that you experience some remorse in respect of your offending, but I am unable to describe you as a remorseful.
45 In respect to your life’s work both prior to 1970 and post-1975, you became a postulant in 1954 at the age of 16 years and took your final vows in 1961 at age 23. From at least 1957 you taught at various Marist schools at both primary and secondary level. Accordingly, at the time of your offending you were a teacher with at least 15 years’ experience in the classroom. In 1976 you were transferred from St Paul’s College and spent a year at the National Pastoral Institute of Religious Education located in Elsternwick, where you attended as a student. Thereafter your teaching career continued until 1985, when you took on a pastoral role at various catholic colleges in Mount Gambier, Preston, Shepparton, Sale and North Fitzroy. These duties were suspended by sabbatical leave and study overseas in 1981 and 1993.
46 At the time that the offences the subject of the 2006 sentence became known to your Order you were removed from normal duties and have remained so. Many of your referees, both Marist Brothers and members of the laity, write of your contribution to the communities in which you lived since 1975 in particular I note the references of Maureen Phillips and Peter White. Plainly, since 1975 you have lived a blameless life. Accordingly, Mr Smallwood relied on your documented rehabilitation as a mitigating factor to be considered in the exercise of my sentencing discretion. Further, Mr Smallwood relied upon your history of psychological treatment and compliance with the personal safety and well-being plans.
47 Mr Sonnet, Crown prosecutor, relied in turn upon s5AA of the Sentencing Act 1991 which, in your circumstances, precludes you from relying on your good character prior to 1970.
48 I find that since 1975 you have undergone a process of rehabilitation.
49 As to the issue of totality as it applies in your circumstances, as Whelan and McLeish JJA’s opined in Sayer v R [2018] VSCA 177 at [71]:
“… Its application does not proceed by seeking to identify what total sentence would have been imposed had all the offending been before the court at the time when the person was first sentenced and then making adjustments to that sentence. On the other hand, the fact of the sentence and its effects are apt to be highly relevant sentencing considerations.”
50 Further, in R v Bruce (1998) 71 SASR 536 at 541, Doyle CJ (with whom Pryor and Lander JJA’s agreed) opined:
“However, as is well established, one has to look at the totality of the punishment imposed, and consider whether, even though justifiable in the abstract, the actual sentence is more than is required for the purposes of punishment and deterrence. The Court on numerous occasions has referred to the question of whether the sentence is a crushing one. That is, I consider, another way of stating the same point.
I regard these two cases as very difficult cases. I agree that it is proper to make some allowance, in a manner in which one cannot be precise, for the fact that a term of imprisonment has already been served for offences that are part of the same pattern of conduct. On the other hand, one has to be careful not to simply take a ‘bulk discount’ approach. People who commit multiple offences cannot assume that the sentences imposed will be less than each offence warrants in isolation. It is only when the combined effect of the sentences is more than is warranted that any question of reduction can arise.”
51 Finally, returning to Sayers’ case, the court opined, having referred to the relevant authorities at [78]:
“However, consistently with those authorities, the prior sentences and time spent in custody are part of the appellant’s circumstances which were required by the principle of totality to be taken into account.”
52 Mr Smallwood relied upon the term of imprisonment already served by you as a result of the sentence imposed upon you by his Honour Judge Allen to submit that returning you to prison in all the circumstances would be a crushing sentence. Further, I note that many of the supports that you relied upon whilst serving the term of imprisonment will no longer be available to you in the present circumstances resulting from the COVID-19 virus.
53 The sentence to be imposed on you is guided by a different maximum penalty to that which applies to similar offending today. Further I must bear in mind that at the time of your offending sentences imposed for sexual offences were somewhat lower than those that are presently imposed.
54 You entered your pleas at the earliest opportunity and are entitled to the benefits that flow to you from them particularly their utilitarian benefit and, also subject to the findings that I have made they are some evidence of your remorse.
55 Specific deterrence has no role to play in the exercise of my sentencing discretion however, general deterrence, just punishment and public denunciation of your offending must play significant roles in arriving at a just sentence in your circumstances.
56 You are an elderly man and in ill health. You have undertaken a lengthy period of rehabilitation. You have lived a blameless life since 1976. You have previously been sentenced on 3 occasions for similar offending that occurred at the same time as the instant offending. You are currently undergoing sentence and have served a period of actual imprisonment as part of that sentence. A sentence involving a term of incarceration would be more onerous for you than a man of younger years or a man in good health. The regime under which you would be held in prison as a result of the COVID-19 restrictions would be more restrictive than you experienced in the recent past and the supports that you enjoyed when you were in prison in the main will be unavailable to you.
57 However, your offending is a serious example of offending of the kind. Your offending involved egregious breaches of trust. The adverse and lifelong consequences of your offending against innocent children who are now are men in their late middle age is profound. You offended against 2 of your child victims on more than one occasion and in respect to one of those victims your offending was premeditated. Your offending was systematic, predatory and similar in respect to each of your child victims. Ultimately, I am of the view that part of the sentence that I will impose on you must be immediately served.
58 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
On Charge 1 – 18 months’ imprisonment;
On Charge 2 – 12 months’ imprisonment;
On Charge 3 – 1 month’s imprisonment;
On Charge 4 – 20 months’ imprisonment; and
On Charge 5 – 15 months’ imprisonment.
59 I order that 6 months of the sentence imposed on Charge 1, together with 4 months of the sentence imposed on Charge 2, together with 5 months of the sentence imposed on Charge 5, be served cumulatively upon each other and upon the sentence imposed on Charge 4. This results in a total effective sentence of 35 months imprisonment and I order that all save 7 months of the sentence be suspended and I fix an operational period of 28 months. That means, Brother McNamara, that you have been sentenced to 35 months' imprisonment. You will serve immediately 7 months and then the balance of that sentence of 28 months will be suspended for a period of 28 months.
60 I direct that it be entered in the records of the Court that you are sentenced as a serious sexual offender in respect of Charges 1, 2, 4 and 5.
61 I direct that you be subject to the provisions of the Sex Offender Registration Act 2004 for life.
62 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 5 years’ imprisonment with a minimum term of 2 years and 6 months’ imprisonment.
63 Is there anything arising out of the sentence?
64 MR GRANT: No, Your Honour.
65 HIS HONOUR: Now, there is one matter, Madam Prosecutor, and it is this, as I understand it, the prisoner is already subject as a result of previous sentences imposed on him to be subject to the provision of the Sex Offender Registration Act 2004 for life.
66 MS HERSCH: That's correct, Your Honour.
67 HIS HONOUR: Therefore, is it incumbent upon me, having made the direction that I make which is but an announcement of the application of the Act itself for the prisoner to sign once again the documents acknowledging that he is subject to the Act for life?
68 MS HERSCH: Your Honour, my understanding is that in accordance with s.34(1)(c)(iii) of the Sex Offenders Registration Act, the accused needs to
re-sign a fresh declaration.
69 HIS HONOUR: Thank you very much for that, Ms Hersch.
70 MS HERSCH: Your Honour, sorry, could I just ask if you could please clarify the 6AAA sentence? I did not quite catch what Your Honour said.
71 HIS HONOUR: Yes, five with a minimum of two years and six months.
72 MS HERSCH: Thank you, Your Honour.
73 HIS HONOUR: Could you take those documents to the prisoner please?
74 MR GRANT: May I be excused from the Bar table, Your Honour?
75 HIS HONOUR: Yes, certainly, to assist the prisoner.
76 MR GRANT: As Your Honour pleases.
77 MS HERSCH: Your Honour, just one other thing.
78 HIS HONOUR: Please, Ms Hersch.
79 MS HERSCH: My understanding - - -
80 HIS HONOUR: Would you be seated, Ms Hersch.
81 MS HERSCH: Sorry, Your Honour.
82 MR GRANT: Thank you, Your Honour.
83 HIS HONOUR: Thank you, Mr Grant. Now once Mr Grant has returned to the Bar table. Yes, Ms Hersch?
84 MS HERSCH: Your Honour, just in relation to the operational period of the suspended term, my understanding is that in accordance with s.27(2)(a) of the Sentencing Act the operational period needs to be for at least the length of the suspended term.
85 HIS HONOUR: Correct.
86 MS HERSCH: So at least 35. It needs to be suspended for at least 35 months and for at a maximum of 36 months.
87 HIS HONOUR: But the suspended term is 28 months.
88 MR GRANT: Yes, Your Honour, I agree with that.
89 HIS HONOUR: The operational period must be at least as long as the suspended period, which is 28 months.
90 MR GRANT: That is as I understand it, Your Honour, yes.
91 HIS HONOUR: Before he must actually serve eight months which is not suspended.
92 MR GRANT: Does Your Honour mean seven months, not eight months? Does Your Honour mean seven months, not eight months?
93 HIS HONOUR: Seven months.
94 MR GRANT: If Your Honour please.
95 HIS HONOUR: If there is nothing else that arises out of the sentence.
96 MS HERSCH: No, Your Honour.
97 MR GRANT: No, Your Honour.
98 HIS HONOUR: Would you remove the prisoner please?
(Prisoner removed.)
99 Now, can I explain what's going to happen now, Mr Grant. I anticipate that you and your instructing solicitor will confer with your client in the cells.
100 MR GRANT: Yes, Your Honour.
101 HIS HONOUR: And so I excuse you and your solicitor from the Bar table.
102 MR GRANT: As Your Honour pleases.
103 HIS HONOUR: In respect to the members of the public who are present and members of the press who are present, you are to absent yourselves from the courtroom. There are a number of interested parties who the Crown wish to confer with on a confidential basis by use of the indirect means of attendance that has been used. So I would ask you to absent yourselves immediately.
104 MR GRANT: If we may be excused now, Your Honour?
105 HIS HONOUR: Thank you very much.
106 MR GRANT: As Your Honour pleases.
107 HIS HONOUR: And thank you for your assistance, Mr Grant.
108 MR GRANT: Thank you, Your Honour.
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