Director of Public Prosecutions v McNamara
[2016] VCC 1890
•6 December 2016
P
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GERARD JOSEPH McNAMARA |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 14 November 2016 | |
DATE OF SENTENCE: | 6 December 2016 | |
CASE MAY BE CITED AS: | DPP v McNamara | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1890 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – three charges of indecent assault upon a male – pleas of guilty – subsequent similar offending already dealt with – suspended sentence - totality - delay
Legislation Cited: Section 68(3A) of the Crimes Act 1958 (as amended by the Crimes (Amendment) Act 1967); Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:R v Mills (1998) 166 CLR 559 at [64]; R v Rodriguez v Director of Public Prosecutions (DPP) (Cth) [2013] VSCA 216; O’Brien (a Pseudonym) v R [2014] VSCA 94; R v Merrett, Piggott & Ferrari (2007) 14 VR 392; Bournev R [2011] VSCA; R v Miceli (1998) 4 VR 588; R v Mangelen (2009) 23 VR 692; R v Nikodjevic [2004] VSCA 222; R H McL v R (2000) 203 CLR 452; Gordon v R [2013] VSCA 343; R v Verdins & Ors [2007] VSCA 10
Sentence: Total effective sentence of 16 months imprisonment; wholly suspended for an operational period of 16 months; Serious sexual offender; Sex Offender Registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Sonnet | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms T Riddell | Williams Winter Solicitors |
HIS HONOUR:
1 Gerard Joseph McNamara, you have pleaded guilty to the following offences:
Charge 1
– That you, in Victoria between 1 January 1975 and
31 December 1975, did unlawfully and indecently assault Jack Lawley[1], being a male under the age of sixteen years.
Charge 2 – That you, in Victoria between 1 January 1975 and 31 December 1975, did unlawfully and indecently assault Oliver Lawley[2], being a male under the age of sixteen years.
Charge 3 – That you, in Victoria between 1 January 1975 and 31 December 1975, and on an occasion other than that referred to in Charge 2, did unlawfully and indecently assault Oliver Lawley, being a male under the age of sixteen years.
[1] A pseudonym.
[2] A pseudonym.
2 Indecent assault upon a male is contrary to s68(3A) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 1967. At the time of the offending, the offence of indecent assault of a male carried a maximum penalty of five years’ imprisonment. The penalties in respect of indecent assault have increased since the date of the offending, but the law provides that the maximum penalty applicable is that at the time of your offending.
3 The prosecution has provided a written summary of the circumstances surrounding your offending. Such summary has been marked as an exhibit (Exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)You are seventy-eight years of age, having been born on 9 March 1938. At the time of the relevant offending you were aged between 36 and 37 years old. Over the period of the relevant offending, you were the principal and sports master teacher at a College in Gippsland, which was an all-boys school, educating students up to Form 4 level and, thereafter, co-educational for Forms 5 and 6. The College was run by the Marist Brothers, of which you were a Brother at all relevant times. You have now retired and relocated;
(b)Jack Lawley and Oliver Lawley were brothers who attended the College and were sexually offended against by you;
(c)Jack was born on 9 April 1963 and, at the time of your offending, was aged between 11 and 12 years;
(d)At some time during 1975, he was playing soccer with other students when he injured his right knee when he accidently came into contact with a brick wall. He was taken to the school office and told by a female worker to remove his torn pants to have them mended, leaving him standing in his underwear and socks;
(e)You then walked into the office and enquired what had happened and, after being told, produced a tube of Dencorub and began applying the cream to Jack’s knee before applying it all over his leg. You then proceeded to move your hands up to the victim’s groin muscles, just below his underpants, and continued to do this for approximately ten minutes, manipulating the victim’s groin muscles. You then placed your hand into his underwear and ran your hand along his penis before cupping his testicles, and then fondled his testicles. You then removed your hand and finished massaging the leg;
(f)Jack then returned to class smelling of liniment and was laughed at by other students, which made him feel extremely embarrassed. You had a reputation amongst the students – a common expression was “getting a rubdown from Brother Gerard”. What I have just dealt with is Charge 1;
(g)Oliver was born on 20 June 1961 and, at the time of the offending, he was aged between 13 to 14 years old;
(h)Oliver was playing football on an occasion in 1975, when he received a corked thigh, resulting in him limping into the school yard. He was approached by you and directed to go to the sports shed, which he did reluctantly, as he was aware of your general authoritarian reputation;
(i)On attending the shed, Oliver was directed by you to remove his trousers and lay on his back, after which you proceeded to rub Dencorub into his thigh. Afterwards, you removed Oliver’s underwear, exposing his genitals, and then proceeded to rub his groin area, before telling him to dress himself and return back to the class. You did not touch his genitals at that time. What I have just described is Charge 2;
(j)You directed Oliver to re-attend in two days’ time to see how the injury was progressing and, at that time, he attended the sports shed and, again, you directed him to remove his trousers and lay down on the bench. Again, you proceeded to rub Dencorub into Oliver’s thigh and, again, you removed his underwear, exposing his genitals. You proceeded to rub the victim’s groin area before telling him to dress himself and return back to the class. You did not touch his genitals at that time. What I describe is Charge 3.
4 Both victims disclosed accounts of the offending to their mother after seeing you on the news, having been charged with sexual offences against other children. However, no investigation occurred and no charges were laid at that time.
5 On 11 February 2015, Jack Lawley attended the Moe Police Station and reported he had been sexually offended by you, after which a police investigation commenced. I was informed that in August 2015, Oliver Lawley also made a complaint in relation to being sexually offended by you.
6 On 5 December 2015, you voluntarily attended the Bendigo Police Station and was arrested. A record of interview was conducted in which you denied or made “no comment” to all allegations (see Questions and Answers 103, 145 and 142). You stated that you could not remember the victims (see Questions and Answers to questions 75-77, 132 and 149) and denied touching the genitals of any student (see Questions and Answers 105-108 and 144). You were released on bail after such interview.
7 On 27 May 2016, there was a Magistrates’ Court filing hearing and, on 5 August 2016 there was a Magistrates’ Court committal mention which resolved into a plea of guilty in relation to the subject offences. The prosecution accepts such plea of guilty was at the earliest possible time.
Prior convictions
8 You have no prior convictions, but do have subsequent convictions recorded on 17 June 2005, when you were convicted on seven counts of indecent assault upon male persons under the age of sixteen years. These offences were committed between April 1972 and December 1975, which are identical in nature to the current offences. In particular, such offences also occurred when you were working at the college in Victoria and involved you applying cream and massaging the groin area and/or touching the genitals of various students following “injuries” suffered by them.
9 You were sentenced by his Honour Judge Duggan, in the County Court to a total effective sentence of thirty-six months’ imprisonment – all of which was wholly suspended for a period of twenty-four months. In this respect, a transcript of the sentencing remarks of Judge Duggan delivered on 17 June 2005, was tendered (see Exhibit 2). I have read such sentencing remarks.
Victim Impact Statements
10 Both Jack Lawley and Oliver Lawley have each made a Victim Impact Statement which they read aloud to the court (see respectively exhibits 3 and 4).
11 In his statement, Jack describes the emotional impact on him and the loss of innocence of a twelve-year-old, naïve young boy as a result of your offending. This impact has lived with him for nearly forty years. In particular, he describes how he was left “alone”, and to his own feelings of confusion and isolation.
12 He also describes this feeling of being different. Although he attempted to bury such thoughts deep in his conscious mind, they would surface at any time and make him angry, and such anger was directed to others, who knew nothing of his past experiences.
13 He describes how his former wife considered him emotionally barren and that he had been on anti-depressants for the last nine years and also attending a number of counsellors for depression. Throughout this period of time, he has kept what he refers to as this “nasty secret” to himself.
14 He also described that over the years, he has had countless nights of lost sleep, difficulty dealing with others and also attempting, through physical activities, to prove that he was the equal of others. Furthermore, he describes over the years that his diet deteriorated by eating comfort food to deal with his secret. Further, he has been a heavy smoker.
15 He also described how his attempts to feel “normal” and prove himself, has all impacted on his failed marriage, and bankruptcy. Furthermore, this in turn has led to a significant financial impact on him - ongoing child support, ongoing consultations with counsellors and the cost of various medications. He described that after thirty-eight years of working he has no money, and very slim prospects of being able to live independently ever again.
16 In his statement, Oliver describes how it has been extremely difficult and confronting to re-live the experiences caused by your offending. In particular, he describes how it was difficult to acknowledge the events to himself, dealing with the police about such events and, lastly, even making the Victim Impact Statement.
17 He notes that although you were supposed to be a mentor of students and a moral compass for developing young men, you saw fit to place your self-gratification above such responsibilities.
18 He also describes that being subject to your “rituals” – that is what you referred to as “rub-downs” - meant that he and other victims were ridiculed by classmates, causing much torment, which has changed his life forever. He describes that never again would he feel trust with a person of religious cloth and vows. Furthermore, he describes you as being a fierce proponent of corporal punishment and there was no choice but to adhere to your desires to “help”.
19 He describes your intimidatory presence which broke down any trust whatsoever between teacher and student and which totally evaporated after your abuse.
20 He describes that not only has he lost a trust in your religious order, but has led to a lack of trust in all religious leaders since this event in his life. He describes that he has stripped all beliefs he ever had in relation to the Catholic Church and any philosophies away from his working life.
21 In particular, he states:
“I have vivid memories of you demanding a hug from me. I recall how starched your clothes were, they felt thick and heavy. The memory of this still unsettles me, and is possibly a factor as to why I find it hard to hug those that I love. The control of vulnerable young men you engaged in whilst we were in your care, demanding we undertake activities to your and your alone satisfaction, still sends shudders down my spine. It is why I still treat religious leaders with contempt, why I cannot bring myself to partake in the rituals and beliefs of your religion, why I find it hard to display my emotions and why I feel anger and fury when I read or hear of other actions of the clergy … .”
22 He also comments that your actions destroyed any student-teacher relationship.
23 He also speaks of the difficulty of being open and loving to his children and carefree. He speaks of being reserved, guarded and emotional at times, unable to show the love he has for his children and trying to overcome these traits has not been easy. He blames his experiences with you in the shed many years ago for causing these problems.
Your personal circumstances, educational and vocational background
24 Your counsel tendered a folder of plea materials consisting of various medical and psychological reports, various testimonials, a signed Safety Plan issued by the Provincial of Marist Brothers Australia in respect of you, and correspondence from the Sex Offenders Registry. (See Exhibit “A”).
25 In particular, based on the material in Exhibit “A” and other material tendered, together with the various submissions made by your counsel, I note, that you grew up in Gippsland after relocating to Yallourn from Melbourne at a young age. Such a move was considered to be better for the health of your mother, who suffered psychological problems.
26 You have had a good relationship with your younger sister, Brenda, who has supplied a testimonial dated 20 June 2016 (found at partition 14 of Exhibit “A”). Your sister described that she was only nine when you went to boarding school and that she had very little contact with you due to restrictions with the activities of Marist Brothers. She describes that she and her husband, and their family, had to get to know one another “again”. She describes you as now being part of the family, which involves coming and staying with them. She describes you as showing continuing love and support for her husband and having a close relationship with her children; being involved in their day-to-day activities and attending their weddings and subsequent family celebrations.
27 From the age of twelve, you attended a Marist Brothers’ boarding school at Sale. You found the level of discipline harsh and, indeed, this may be why you assumed a very authoritarian attitude to pupils as a teacher. Your mother underwent electroconvulsive therapy, from which she never recovered.
28 At the age of seventeen years, you were a novitiate with the Marist Brothers, and professed to be a Brother on 11 July 1956, at the age of eighteen years. You underwent one year of teacher training and then was employed at various schools throughout Victoria and New South Wales as a teacher. You taught geography and English. You have commented to others that you found this work very demanding and stressful, particularly so given the inadequate training that you had received to be a teacher.
29 Between 1970 and 1975 you were the sports-master and deputy principal and, ultimately, the principal at a College in Gippsland, which was run by the Marist Brothers. As stated earlier, such school was an all-boys school, educating students up to Form 4 level and, thereafter, was co-educational in Forms 5 and 6. It was during this period of time that the subject offending occurred and, also, the offending for which you were dealt with by His Honour, Judge Duggan, on 17 June 2005.
30 In 1976, you had a one-year sabbatical in Melbourne after which you resumed teaching duties in Mount Gambier and then Preston. In 1981 you attended a Marist Brothers’ Renewal Program in Switzerland, after which you returned to Preston, where you commenced studies in Clinical Pastoral Education while performing some part-time teaching. You were moved to Shepparton in 1986 as a student welfare coordinator. Later, you completed a Graduate Diploma in Education studying student welfare at the Hawthorn Institute and, thereafter, coordinator of student welfare at the North Fitzroy school, before becoming campus Minister at Sale in 2003.
31 Seemingly, over the period from about 2001, you were largely involved in religious studies and counselling work in the areas of effective parenting, drugs and alcohol, bullying behaviour and grief support. In this respect, I refer to the testimonials of Heather Burton dated 19 May 2004, the report of Dr John Bergin, dated 20 May 2004, the testimonial of Ms Catherine Rousell, dated 13 May 2004, all of which are contained in Exhibit “A”, and all of which paint a picture of your dedicated assistance to those in need.
32 Following complaints about your conduct in late 2003 and early 2004, the then Provincial of the Marist Brothers withdrew you from Ministry activities and immediately retired you to domestic duties. In particular, you have been subject to a “Safety Well-Being Plan” designed by the Provincial, which very much limits your activities and particularly prohibits you from working with minors. Any access to minors must be supervised, movement restrictions involving advanced notice of holiday plans and overnight stays away from your residence, together with ongoing contact and support from retired Marist Brothers and counselling.
33 Following such complaints, in late 2003 and early 2004, you sought treatment from the psychologist, Mr Shane Wall, who initially consulted with you on 14 April 2004. I refer to his reports dated 3 December 2004, 28 January 2005 (found in partition 21 of Exhibit “A”) and 6 June 2016 (found in partition 3 of Exhibit “A”).
34 When you first consulted Mr Wall, you told him that you were facing complaints and possible charges relating to your time as a deputy principal and principal at Marist Brothers secondary college in the early to mid-1970s. You informed Mr Wall that some former students had alleged that you touched and fondled them inappropriately in your role as a sports coach when you would massage them. In his report dated 28 January 2005, Mr Wall stated:
“He stated that he found any insinuation that he was engaged in sexually perverse acts ‘abhorrent’.
Br McNamara said that he had some exposure to sports massage as a rehabilitative tool and that he was proud of the skill which he saw as ‘healing’ injuries. He constantly referred to his role as a physical ‘healer’.
However, he acknowledged that he was seen as an ‘enforcer’ who commanded or demanded respect and that he also probably inspired fear and trepidation in students when he was at Traralgon in the years 1972-1975.
Br McNamara stated that he was oblivious to the fact that, by performing the act of massage, he might be exposed to any professional or personal problems. However, his deputy Br John McMahon advised him in around mid-1975 that he was placing himself at some considerable risk in that others might see his behaviour as being inappropriate. McNamara said that from that time on, he ceased the conduct.”
35 Mr Wall obtained a history that you are heterosexually orientated and did not detect any symptoms of mental illness or significant symptoms of depression, although there were some symptoms of increased anxiety which were to be expected in the circumstances. Mr Wall concluded in that report that you were:
“… a naïve and psychosocially immature person who almost totally sought to define his self-identity concept through his identity as a Marist boarding school teacher and he entered training as a Marist almost immediately after this. By his own admission, he was a primary trained teacher who took on too much and rose to become a principal of a major secondary college.
Br McNamara acknowledges that he needed to be recognised and affirmed as gifted in his role as teacher and sports coach. He also now is able to see that his behaviour in summonsing boys to be massaged would have been a fearful and strange experience for them. It is my view that he is remorseful of the distress he has caused these former students.”
36 Later in that report, Mr Wall recorded that you acknowledged that performing such a role was inappropriate, naïve and stupid and that your behaviour would have been a strange and confusing experience for the boys that you sexually abused. In particular, Mr Wall recorded:
“As for his motivation surrounding these incidents, Mr McNamara insists that the motivation for the massage was to satisfy his own self esteem deficits and the need to be seen as a skilled therapeutic ‘healer’ and that he only came to this realisation following the advice by Br John McMahon and the opportunity to reflect on his life and balance during the retreat and education year at the National Pastoral Institute. He adamantly denies that the massage was a means to achieve some deviant sexual needs and states that it was an end in itself or, if it was a vehicle to achieve anything, it was to satisfy his own fragile and immature self-esteem. In saying all of this, McNamara acknowledges that his behaviour was indecent, caused fear and distress to the students in his care and that this distress continues to the present day in some manner; and these acts occurred in the context of his persona at the time of being a ‘tough enforcer’ who probably caused some fear and trepidation in students, and that he is accountable and responsible for these actions and the effects on those former students.”
37 Initially, Mr Wall confirmed that he consulted with you in weekly sessions of one hour’s duration and during 2005 such sessions became fortnightly, and the focus of the sessions was to support and reinforce your “safety plan”, supervision and risk management. From 2007, the frequency of the visits was less and later, three-monthly, and then Mr Wall would see you twice a year. By 2013, there was an annual review.
38 Mr Wall commented that he was satisfied that you were being adequately supervised by the congregation and was compliant with the restrictions imposed. Furthermore, he was satisfied you were similarly compliant with your attendances on him, and Mr Wall found you to be insightful and accepting of such restrictions, and the reason for such behaviour. In particular, Mr Wall stated in his last report dated 6 June
“I formed the view in 2005 that Br McNamara was remorseful at the distress and impact he has caused by virtue of his offending behaviour. I believe that this remains the case in the present day. He plead guilty to the current charges and is one indicator of such remorse. He has become intensely spiritual over the past decade or so and he presents as someone who will not minimise his behaviours nor impose further distress on those former students he has already harmed;
I consider Br McNamara to be a low risk of re-offending. He has developed significant insight and is compliant with the supervision and the risk minimisation restrictions;”
The earlier sentence of Judge Duggan
39 In 2005, you pleaded guilty to seven charges of indecent assault against male persons under the age of sixteen. These offences occurred between 1 April 1972 and 30 November 1975. The victims were six students at school at Traralgon where you were a teacher.
40 It has been pointed out earlier in these reasons that the offending was the same as the subject offending, in that you massaged each of the victims and, in some cases, touched or fondled the genitals. Most of the offending, although not all, was conducted in the sports equipment shed following some “injury” suffered by the victim.
41 Victim Impact Statements were supplied by all the victims and as Judge Duggan noted:
“For the most part these statements claim an ongoing anguish and bitterness”.
Judge Duggan noted there was no doubt that there is a much greater appreciation of the potential long-term adverse effect of sexual abuse in childhood. Although the prosecution, at that time, sought an immediate sentence of imprisonment, those acting for you, although conceding that there should be a sentence of imprisonment, submitted such sentence should be wholly suspended for a variety of reasons.
42 Ultimately Judge Duggan convicted you of each offence and sentenced you to various periods of imprisonment for the offences which, after cumulation, amounted to a total effective term of 36 months’ imprisonment. Judge Duggan then wholly suspended such period of imprisonment for a period of two years, for the following reasons.
“Firstly, the nature of the offending. What you actually did to these victims was not as bad as unfortunately is often the case. It greatly offended the victims and they carry that sense of offence with them. One can understand that but objectively, and I must be objective about a matter of this sort, it is at the lower end of the scale of offending of this character.
Secondly, the fact that you voluntarily desisted a long time ago is a fortunate circumstance.
Thirdly, you have been able to point to me positives in your life in the intervening years. The evidence points to a substantial contribution to the welfare of a wide section of society. This now has come to your assistance.
Fourthly, recent legislation requires you to be registered as a sexual offender with all that entails. In my opinion for you it will be a humiliating and totally unnecessary obligation with ongoing consequences. In these circumstances it constitutes a significant form of punishment in itself.
There are other mitigating factors. Firstly, your plea of guilty and secondly, the passage of time. These are very old cases.”
43 It is to be noted that the periods of imprisonment for the various offences varied from ten months to sixteen months, the latter being a sentence for a representative charge which involved touching the genitals on at least two occasions.
Your counsel’s plea in mitigation
44 It is submitted by your counsel that the offences constitute a “serious breach of the trust” committed by an adult in a powerful relationship over vulnerable children and it is accepted that the impact of such offending is not only immediate, but can be lasting. It was further submitted that the offending in the circumstances of this matter was at the lower end of “seriousness” -– in particular, Charges 2 and 3 involving the rubbing of the thigh without any touching of the genitals, but in circumstances of indecency, where the genitals were exposed.
45 In particular, your counsel submitted the following matters are particularly relevant in mitigation of any sentence:
(a)That you indicated your intention to plead guilty to the current charges at the committal mention on 5 August 2016, which is accepted by the prosecution to be the earliest opportunity. By pleading guilty to such charges, you have spared the victims the additional trauma of having to give evidence in court and, furthermore, such a plea of guilty has utilitarian value in saving the court the time and cost of a trial;
(b)That such early plea of guilty, in circumstances where the offending occurred some forty years earlier and without corroboration, is also an indication of “true remorse”. In the course of your plea, you read a letter to the victims expressing your remorse about what they had experienced because of your actions. Your counsel also referred to reports of your long-term treating psychologist, Mr Wall, which contains expressions of remorse, and from various current testimonials.
In particular, reference was made to the report of the psychologist, Dr Anthony Aris (found in partition 8 of Exhibit “A”). In his report dated 11 October 2016, Dr Aris noted that you had been attending Mr Wall up until around November 2014. He is now no longer available. Your treating general practitioner, Dr Choksey, prepared a Mental Health Plan dated 9 June 2016, which allowed for ten sessions with a psychologist. You initially attended Dr Aris on 10 June 2016 and, at the time of writing his report, you had attended on a further four occasions.
Doctor Aris obtained a history of your early training and your description of being thrown in the “deep end”, with inadequate preparation and experience of the type of work which you were directed to perform. I also note that your vocational life exerted considerable strain with your parents and, in particular, with your mother who had the longstanding battle with psychological problems and her unfavourable response to electroconvulsive therapy.
Dr Aris noted in his report that there has been an “evolving insight over the years” in relation to your development as an exponent of the healing arts. Dr Aris noted that you saw yourself, at the time, as having a gift for which is termed physical healing and, on that basis, found a perception of your competence in this regard as “quite rewarding”. He noted that you were quite hopeful about the practice of regularly scheduling students to attend some remedial therapy to the point where it raised concerns from your deputy principal (Brother McMahon), who at times advised you to cease on the ground that it might place you in an invidious position. Dr Aris recorded that, over the years, you appreciated the potential impact of your past remedial massage practice on children. When queried as to what traits or psychological conditions lead to the offending, Dr Aris stated, in part:
“I noted that Mr Shane Wall in his report on 2005 referred to a quality of naivety which may have played a role at the time in this respect. I feel more importantly though that certain institutional factors at the time affected Brother McNamara in that he was often required to operate on the fringe of his competence both during and in the lead up to the time of his offences. One 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.”
Dr Aris also expressed his opinion based on the history given by you that any offending was confined to the mid-1970s. Dr Aris also stated:
“Br McNamara has at various points in counselling demonstrated to me his empathy for his victims and his abhorrence that his practice of physical therapy with children at the time had either the potential to cause harm or actually harm in the case of his offence.”
Dr Aris also expressed the opinion that the risk of recidivism is “low”. Initially the Static-99 test indicated a low-moderate risk, but taking into account your age and the decreased access through the operation of the “Safety and Well-Being Plan” and your further insight into your activities, Dr Aris considers you a low risk of re-offending. According to Dr Aris, you have not breached any conditions of the Safety Plan agreed to with the Marist Provincial, and you have continued to adhere to that plan.
(c)The issue of “delay” and in this respect, your counsel referred to various well-known decisions including R v Mills (1998) 166 CLR 559 at [64]; 235; R v Rodriguez v Director of Public Prosecutions (DPP) (Cth) [2013] VSCA 216; O’Brien (a Pseudonym) v R [2014] VSCA 94; R v Merrett, Piggott & Ferrari (2007) 14 VR 392 at [400]-[401]; [36-[39]; Bournev R [2011] VSCA 159 at [30]-[32] and R v Miceli (1998) 4 VR 588. Your counsel submitted that Oliver Lawley first complained to their mother around the time of the 2005 proceedings and there was “no explanation as to why the current matters were not reported to the police at that time, nor why there was a delay of some ten years before doing so”. In this respect, such delay, so it was submitted, can mitigate a sentence on the basis that:
(i)A period of delay allows for one to assess the rehabilitation of the offender over the intervening period and, in the present circumstances, you have not re-offended, you have engaged in welfare activities and have been the subject of a “Safety Well-being Plan”, and your counsel points to the various testimonials speaking of your good deeds over many years;
(ii)That because of such delay, you had this sentence “hanging over your head” for a long period of time (so it is submitted), which has given rise to “anxiety and stress”;
(d)It is submitted that any custodial sentence will be far harder for you than another prisoner given your age and various medical conditions, including prostate cancer, glaucoma, osteoarthritis, Grover’s Disease, osteopenia, hypertension, atrial fibrillation and chronic renal failure. All such conditions require ongoing monitoring and treatment, as outlined in the various reports set out in Exhibit “A”. Dr Aris noted that you did present as a somewhat diminutive and frail man, nearly in your eighties, and that you would struggle “enormously” in a custodial environment. He accepted that your psychological wellbeing is maintained by your reliance on the exceptionally robust systems of social support and family, your friends and like professionals. Dr Aris was of the opinion that a custodial sentence would pose “exceedingly harmful risks on you physically and mentally”;
(e)Your counsel also relies on the principle of “totality”. It was submitted that it is relevant to take into account the sentencing disposition of his Honour Judge Duggan in 2005, when dealing with the seven charges of indecent assault against male persons under the age of sixteen. The offending at that time was, for all intents and purposes, the same as the subject offending. If the subject offending had been part of the offending dealt with by Judge Duggan in June 2005, it would have been necessary to assess the overall criminality of your offending. In a similar way, when coming to an appropriate sentence for the subject offences, it is necessary to take into account the disposition by Judge Duggan in June 2005.
In the decision of R v Mangelen (2009) 23 VR 692 at paragraph [28]-[29], the Court of Appeal explained the history of the totality principle and its extension to sentencing on separate occasions:
“Historically, the principle of totality has been applied in circumstances where an offender fell to be sentenced for multiple offences to ensure that the aggregation of the sentences was a just and appropriate measure of the offender’s criminality. The ambit of the principle was extended to apply where the offences upon which the offender must be sentenced overlap with or will be cumulative upon an existing custodial sentence. In both of these situations, the principle requires the court to consider the total criminality involved in all of the offences for which the offender is to be sentenced and the offences for which the offender is currently serving a sentence. The court must evaluate the overall criminality in all of the offences so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be and which have been imposed. If the total sentence is an unjust or inappropriate measure of the total criminality involved, the sentence which the offender is required to serve will be moderated so that the aggregate of sentences imposed by reason of cumulation is not greater than any sentence required to fulfil the totality principle. The principle is to be applied to both the fixing of the head sentence and the non-parole period.”
46 Ultimately, your counsel submitted that the principles of denunciation, just punishment and general deterrence are particularly relevant in the sentencing process. It was submitted that little or no weight should be given to the principle of specific deterrence given that your offending occurred over forty years ago, you are presently seventy-eight years of age, have demonstrated good rehabilitation since the offending and your day-to-day activities are controlled by the “Safety and Well-Being Plan” arranged by the Provincial of the Marist Brothers. Since the 2005 convictions, you have been placed on the Sex Offenders Register, which imposes its own restrictions upon you and which you have abided by. The psychological evidence is such that the risk of re-offending is low and in all the circumstances, specific deterrence is not a factor in the sentencing process.
47 As I have recorded, your counsel submitted that the principles of denunciation, just punishment and general deterrence are relevant. It was conceded that the victims were children in your care and the power imbalance of that relationship is clear. The impact of such offending undermines the trust of parents, the feeling of safety of children and the reputation and confidence in the Catholic church. In particular, the offending is exacerbated by your religious role in relation to the victims.
48 Your counsel submitted that although such offending does attract a sentence of imprisonment, any such sentence should be wholly suspended, as was the case when Judge Duggan determined the matter. Consistent with the principles of totality, it is submitted on your behalf that had these offences been dealt with as part of the 2005 proceedings, the position of Judge Duggan would have been no different.
Response of the prosecution
49 Counsel for the prosecution ultimately submitted that the sentencing range is one that involves a wholly suspended sentence at one end of the range and a modest term of imprisonment at the other end of the range.
50 Counsel for the prosecution accepted that the mitigatory material on which your counsel relied could result in a suspended sentence. In particular, counsel for the prosecution referred to your early plea, advanced age and ill health, the long history of rehabilitation and the low risk of re-offending. He noted, notwithstanding the abolition of suspended sentences, such an order is still obviously available in respect of historical offences – see s149C(3) of the Sentencing Act 1991.
51 However, Counsel for the prosecution also submitted that at the other end of the range, a modest term of imprisonment is within the range by virtue of the application of the principle of totality and, in particular, having regard to the number of victims, the number of offences and the denial of any offending in the record of interview. Counsel for the prosecution highlighted two matters relevant to the sentencing disposition of Judge Duggan:
(a)the total effective sentence of thirty-six months’ imprisonment recorded by Judge Duggan was the limit of a sentence which could be wholly suspended (see s27(2A)(b) of the Sentencing Act 1991 – reprint 7);
(b)Furthermore, the fourth reason proffered by Judge Duggan as to why he ordered a wholly suspended sentence was the “humiliating obligation and totally unnecessary obligation for you to be registered as a sexual offender” pursuant to the relevant legislation. Of course, since then, the Sentencing Act 1991 has been amended so the court must not have any regard to any consequences that may arise under the Sex Offenders Registration Act 2004 in sentencing an offender.
52 Counsel for the prosecution also made the following submissions:
(a)The offending in question was “serious”, indeed, best described as “wicked and depraved” conduct and, thus, deserving of terms of imprisonment on all charges. He referred to the comments of Judge Duggan made in June 2005, when his Honour stated:
“You must understand, however, that by any standards, this offending must be regarded as serious. It is true that indecent assaults do frequently involve more significant sexual activity than is alleged in these offences. It is a factor that has made a difference in this case. However, there are other features that are properly described as aggravating. The most significant is that the offences involved an abuse of the very considerable power that you had over the victims. Almost universally they refer to you as a very authoritarian figure, one who struck great fear in them and a person they felt totally unable to resist. Not only were they required to be subjected to this form of abuse but they felt humiliated by reason of their classmates being aware of what you were doing. The comment is made by more than one of them that the boys in their classes had a good idea of what was going on and if any of them returned from receiving treatment in your hands, smelling of Dencorub, to their embarrassment and humiliation, they thought the rest of the class knew what had happened.”;
(b)Furthermore, it was submitted that the pattern of your behaviour sought to gratify your own lust at the expense of the welfare of the students. Such conduct was completely inappropriate and disgraceful behaviour for a teacher. Notwithstanding your earlier cloistered life, it was submitted, how could you genuinely believe that such conduct was appropriate for the administration of medical treatment? Your offending involved a breach of trust: first as a teacher to the victims themselves, secondly to the parents of the victims and, thirdly, to the religious organisation, Marist Brothers. Counsel for the prosecution also accepted Judge Duggan’s Reasons that the offending must be regarded as “extremely serious but at the lower end of the seriousness scale as it did not involve penetrative activity”;
(c)Further it was submitted that your moral culpability was high, given that you were not suffering from any mental impairment at the time of your offending and it was submitted that you were well aware that the sexual assault of a young boy was contrary to criminal law. In this respect, it was submitted that the prosecution did not accept any suggestion that your offending was through “lack of worldliness and naivety”;
(d)Counsel for the prosecution accepted that although complaints were made by the victims to their mother in around 2005, the reporting of the relevant offences to investigating officers only occurred in February 2015 (Jack Lawley) and August 2015 (Oliver Lawley). It was submitted, insofar as it was put by your counsel, that you had these matters “hanging over your head” since the victims had informed their mother, is incorrect, as the “relevant delay” is between detection and sentencing. The period prior to detection is generally irrelevant to this aspect of consideration. Accordingly, the “relevant delay” was when complaint was made in February and August 2015. Further, it was submitted that that delay was not overly long;
Reference was made to R v Nikodjevic [2004] VSCA 222 where, at paragraph 22, Ormiston JA stated:
“Thus the principle, assuming it should be described as such, is often expressed in terms of the delay between “offending” and sentencing: see, for example, the passage from the judgment of Street CJ in R v Todd - 10 cited with approval in the High Court in Mill v R - 11. However, with great respect, one should be cautious about recognising the time between offending (as such) and sentencing except for certain specific purposes which were analysed with great care by Callaway JA in MWH. Thus it may show reformation of character over a significant period of time which would make rehabilitation largely irrelevant and greatly reduce, if not extinguish, the need for specific deterrence to be recognised in the sentence. But delay of that kind, which may arise in sentencing sexual offenders such as was considered in Todd and MWH, does not give an automatic right for a reduction or discount in sentence. For example, an argument could not be put forward on the basis that the sentence had been hanging over an offender for a long time if in fact detection had only occurred a few months before sentence. It would be preposterous for an offender who committed incest on a six year old child to claim some automatic discount 12 years later when the complainant had first felt safe to complain about his father’s conduct at the age of 18, and the charge had come on promptly for sentencing, whatever might otherwise be said about his behaviour and apparent reformation in the meantime.”
Counsel for the prosecution accepted that the other component of delay, being time to demonstrate rehabilitation and reformation, clearly was relevant and it was accepted that "you have absolutely reformed since those offences”.
(e)It was submitted by counsel for the prosecution that some cumulation is warranted between Charges 1 and 2 on the indictment, as each offence relates to a different victim. It was conceded that total concurrency is open in respect of Charge 3, which has a close connection to Charge 2. Such approach was the same as favoured by Judge Duggan in the 2005 sentencing hearing;
(f)Counsel for the prosecution also noted that if you were sentenced to a term of imprisonment on the charges, Part 2A of the Sentencing Act 1991 applies – that is to say, you will be sentenced as a “serious sexual offender” on all charges.
Reference was made to s6D(a) of the Sentencing Act 1991, which states that the Court, in determining the length of a sentence for a serious sexual offender, must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed. Furthermore, pursuant to s6D(b), the court may, in order to achieve the purpose set out in paragraph (a), impose a sentence longer than which is proportionate to the gravity of the offence considered in the light of the objective circumstances. In the circumstances of this matter, the prosecution submitted that it was not necessary to impose a disproportionate sentence.
Furthermore, s6E of the Sentencing Act 1991 provides that every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender. I was referred to the cases of R H McL v R (2000) 203 CLR 452 and Gordon v R [2013] VSCA 343 at paragraph 74, which deal with the seeming tension between s6E of the Sentencing Act 1991 and the principle of totality;
(g)The prosecution accepted specific deterrence is of “marginal importance” in light of all the circumstances. Rehabilitation is a relevant consideration and, here, you have not re-offended since these offences;
(h)The prosecution accepted that any term of imprisonment was likely to negatively impact on a man of advanced years, however, with most aged offenders, a term of imprisonment was likely to prove more burdensome to serve than if you were a person of younger years. Counsel for the prosecution submitted poor health does not always constitute a significant mitigating factor in sentence. It does not provide an absolute bar to the imposition of a sentence of imprisonment.
Conclusions
53 Although these charges relate to events over forty years ago, any charge involving the sexual abuse of children can only be considered serious. In particular, I consider Charge 1 to be a very serious offence, as it involved your hand running along the penis and cupping the testicles of your victim. Even in relation to the other two charges, you required the victim to expose his genitals in order to purportedly rub liniment into the thigh of the victim.
54 Although the sexual offending did not involve any penetrative activity, which is a more serious type of sexual offending, it cannot be gainsaid that your offending was serious, given a variety of aggravating circumstances involving:
(a)The relative positions between you as the, then, principal of the school and school boys aged between 11 and 14. Furthermore, reference was made to your authoritative attitude, leaving your victims with nowhere to turn to at the school, and nowhere to go to avoid your contact with them;
(b)Your breach of trust between teacher and pupil, spiritual adviser and student, and the trust vested in you by parents to keep their children safe from sexual predators;
(c)The humiliation which your victims suffered through the tormenting from other children who knew that you had performed a rubdown through the smell of Dencorub, or through general knowledge.
55 I also refer to the two Victim Impact Statements and, to adopt the words of Judge Duggan in the earlier case when he was then describing the contents of various Victim Impact Statements before him, the subject statements “claim an ongoing anguish and bitterness”. Clearly enough, your offending has had a substantial impact on each of the victims, giving rise to emotional turmoil and difficulty with relationships they wished to enjoy. It is noted by your counsel that the impact of such offending is not only immediate, but can be long-lasting, as is made manifest by the contents of each Victim Impact Statement.
56 I do not accept the proposition that your activities can be explained by some naïve background, or that you considered yourself the proponent of some type of healing process. Rather, I consider that you were well aware that your actions had a sexual and indecent connotation. As submitted by counsel, your modus operandi was to prey on the victims and insist on treatment after so-called injuries occurring.
57 In mitigation of any sentence, I do take into account your early plea of guilty in relation to the offences. A plea of guilty, at the very least, has utilitarian value in saving the time and cost of a trial (see Phillips v The Queen [2012] VSCA 140 and, in particular, at paragraph 36) and, in the circumstances of this matter, saved the victims from being required to give evidence at a committal and trial.
58 It is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice, and acceptance of responsibility, are to be inferred from a plea of guilty (again see Phillips v The Queen (op cit) at paragraph 96). In the circumstances of this matter, I do consider that your early plea of guilty and, more particularly, cooperation shown by you in dealing with the relevant authorities, permit me to infer that you have some remorse for your offending.
59 However, I consider that your remorse is genuine in relation to the concern that you now have for how the victims of your crimes and as to how the victims of your crimes would have perceived your activities and, furthermore, how it has affected them from those times to date. Although you have pleaded guilty to the subject offences, you seemingly do not accept that what you did was anything other than a healing process undertaken by you in circumstances in which you now accept may have given rise to anguish and concern in your victims. In this respect I, again, refer to your record of interview, wherein you deny touching the genitals of any students (see Questions and Answers 105-108 and 104 of the Record of Interview).
60 I consider that the relevant sentencing principles are denunciation of your crimes, general deterrence – that is to say, to generally deter others from sexually offending against children, and just punishment for your offending. I do accept that specific deterrence plays little or no role in the sentencing matrix given your age, state of health, restrictions under the “Safety and Well-Being Plan” arranged by the Provincial of the Marist Brothers, and your demonstration of good rehabilitation since the subject offending. Also, I note that psychological opinion would suggest that your chances of re-offending are low.
61 In respect to the issue of delay, I accept that it is relevant for the court to be able to assess your activities from the time of offending over a long period to see whether or not there has been rehabilitation and reformation. Consistent with the submissions of both counsel, I do consider that you have demonstrated rehabilitation and reformation, in that there is no recorded further offending after 1975 throughout the period of your continued teaching and, over the many years that you have been involved in other activities. Indeed, having read the testimonials from a wide range of people, it is clear that you have invested much of the last 20-odd years in helping people in a variety of walks of life. For this you are to be commended, and I take account of it in coming to an appropriate sentence.
62 However, I do not accept the submission of your counsel that you have had this proceeding “hanging over your head for a long period of time” and in this sense, accept the submission of counsel for the prosecution that the period of delay in relation to this submission effectively runs from when there is a report to the authorities, that you become aware that you may well be charged with further offending. In the circumstances of this matter, I do not accept that you have had the matter hanging over your head since the actual date of the subject offending nor since the time the victims made initial complaints to their mother in 2005. I do not accept this as a relevant delay period. In this respect, I refer to the comments of Ormiston JA in R v Nikodjevic (op cit), to which I have already made reference.
63 I intend to convict you of each offence and sentence you to a period of imprisonment. Accordingly, Part 2 of the Sentencing Act 1991 applies, that is to say, you will be sentenced as a “serious sexual offender” in relation to each Charge. As I have already noted, the prosecution do not seek a disproportionate sentence within the meaning of s6D(b) of the Sentencing Act 1991, but I do refer to s6E of the Sentencing Act 1991, which requires that every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any sentence of imprisonment imposed on that offender, whether before or at the same time as that term. As noted previously, such section gives rise to attention with the principle of totality and, in this respect, I refer to the Court of Appeal decision of Gordon v R (op cit) at paragraph [74], Redlich JA observed:
“A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s6E of the Sentencing Act 1991. The tension between the policy underlying s6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more readily closely correspond with both the legislative policy underlying s6E and the principle of totality.”
64 Clearly, the principle of totality is relevant in the formulation of an appropriate sentence, bearing in mind the proceeding before Judge Duggan on 10 June 2005.
65 Obviously enough, it is not pertinent to consider what Judge Duggan would have done if there had been a further two victims involving three charges. As has been put to me by both counsel, it is a question of looking at your overall criminality, bearing in mind the nature of the offending determined by Judge Duggan in 2005, and the subject offending, are of a similar nature and occurred at similar times.
66 Given your age and the opinion of Dr Aris as to the state of your health, I consider that the so-called principle 6 outlined in the well-known decision of R v Verdins & Ors [2007] VSCA 102, is engaged. Although you do suffer from a variety of physical conditions, none are particularly life-threatening, but I do accept that it is probable that your psychological wellbeing is maintained by your reliance on the various systems of social support and family, your friends and professionals, furthermore, your physical conditions which require ongoing treatment and consultation. In this sense, I accept that such a consideration is a mitigating factor.
67 After a consideration of all these matters, I have come to the view that a consideration of the purposes for which this sentence is to be imposed cannot be achieved by a sentence other than imposing periods of imprisonment.
68 Given the nature of your offending, you will be sentenced as a “serious sexual offender” within the meaning of Part 2A of the Sentencing Act 1991, and such status is to be entered in the records of the court.
69 Please be upstanding.
70 I make the following orders:
(a)In relation to Charge 1, you are convicted and sentenced to ten months’ imprisonment; This being the base sentence.
(b)In relation to Charge 2, you are convicted and sentenced to six months’ imprisonment;
(c)In relation to Charge 3, you are convicted and sentenced to six months’ imprisonment;
(d)The Court directs that four months of the sentence pertaining to Charge 2 and two months of the sentence pertaining to Charge 3 are to be served cumulatively upon each other and upon the sentence imposed in relation to Charge 1, making a total effective sentence of sixteen months’ imprisonment;
(e)Given your deteriorating health since the convictions recorded by Judge Duggan and you being subjected to the “Safety Well-Being Plan” from about 2004 to date, which clearly places restrictions on your activities and, indeed, current testimonials which paint a picture of your assistance to others in a variety of ways, I have come to the view that it is appropriate to wholly suspend such sentence for a period of sixteen months.
71 The legislation requires me to inform you that if any offence punishable by imprisonment is committed within that period of time, the matter will come back to me and, in the absence of exceptional circumstances, I will have no option but to require you to serve the whole of that term.
72 Pursuant to the provisions of the Sex Offenders Registration Act 2004 and bearing in mind the nature of the offences, I order, pursuant to s34(1)(c)(iii) of such Act, that your name is to be entered on the Sex Offenders Register, for a reporting period, being the remainder of your life.
73 Pursuant to s6AAA of the Sentencing Act 1991, I declare, save for your pleas of guilty, I would have sentenced you to a period of three years’ imprisonment, with a non-parole period of two years.
74 It will be necessary for your client to sign some documentation. Anything to raise?
75 MR SONNET: No, Your Honour.
76 HIS HONOUR: Very well, I will leave the court while that is being attended to.
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