Director of Public Prosecutions v Walker
[2013] VCC 1752
•12 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01071
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL WALKER |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2013 | |
DATE OF SENTENCE: | 12 November 2013 | |
CASE MAY BE CITED AS: | DPP v. Walker | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1752 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – 3 charges of indecent act with male child – Parish Priest – 2 victims – denial when confronted at time – both 14 year old altar boys – representative charges – 35 year delay before report to police and charge – victims profoundly damaged – observations on failure of church to protect victims or report the matter to police when complaint first made
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Flynn Ms K. Mildenhall (for | Office of Public Prosecutions |
| For the Accused | Mr T. Burns | Michael Kelly & Co |
HER HONOUR:
1
Mr Walker you can remain seated whilst I read my reasons. I will ask you to stand at the end when I formally pass sentence on you. In 1976, as a
27 year old, newly ordained Catholic priest, you Russell Walker were appointed assistant priest to a parish in Melbourne’s then rapidly growing outer south eastern suburbs. You then went by the name of Fr Russell Vears.
2
Within a year of your arrival in the parish, you began sexually abusing two
14 year old boys. Their families were active members of the congregation, and they were both altar boys. As a result you had easy access to them, and were trusted by them and their families.
3 You have admitted sexually assaulting one of the boys on two separate occasions during the first year of your tenure at that parish. Your misconduct in respect to the other boy was more extensive and protracted. It continued for some years. By the third year of your tenure, the parents of that boy came to suspect that you had a sexual interest in their son and further, that you had acted on it. They confronted you and you angrily counter attacked, saying to them, in the boy’s hearing, “How dare you accuse me of sleeping with your son”.
4 Despite the confusion caused by your response, the boy knowing that you, a priest had lied, and the parents cowed by the apparently outraged response of a priest, the holder of a holy office that they had been brought up to respect, believe and obey. The boy soon after confirmed to his mother that what she and her husband had suspected was true and that you had been sexually abusing him. Given your initial response, it is not surprising that she sought help and protection from higher up the church hierarchy. She reported the matter to the then Archbishop of Melbourne.
5 Although you are not to be punished for the institutional response, what happened next was scandalous, no less so because, as is now abundantly clear, this boy was not the only victim of clerical abuse in the Melbourne archdiocese, nor the only victim whose welfare was ignored whilst the church took active steps to protect the priest and itself. Although not a single step was taken by the church to protect the victim, to offer him counselling or support, or to report the complaint of sexual abuse by one of its ordained priests of a child in his pastoral care to the police, you were warned a complaint had been made and shortly thereafter transferred to a nearby parish.
6 Your response when warned was not to admit wrongdoing, apologise, surrender yourself to the police or even leave the child alone. Instead, in what can only be seen as a demonstration to the victim and his parents of their powerlessness and a flaunting of your sense of impunity, you confronted the mother after mass the very next Sunday. You challenged her for having taken the matter to the Archbishop, and you continued to sexually abuse the boy. On the agreed facts you had 2 more sexual encounters with him after that, one, before your transfer in the presbytery of the original parish and the other, having told the boy you did not want the head priest of the new parish to catch you, not at the new presbytery, but in a motel booked by you for the purpose of the sexual encounter.
7 It was not until 35 years later, in November 2011, that the first of the victims that I have referred to made a formal complaint to the police and an investigation commenced. When arrested and told of the complaint made by the first victim, you volunteered the name of your second victim and you made admissions of sexually abusing each of them. Your second victim was then approached by the police. Like the first victim, he had, when in his 30’s and 40’s confided in family members and counsellors, but it was not until he was approached by the police in January 2012 that he too disclosed to the police for the first time, what you had done to him.
8
An agreed, or not challenged, statement of facts has been placed before me and based on that, you have now pleaded guilty to 3 representative charges, Charge 1 concerns the first victim, Charges 2 and 3, the second. As I hope it is clear from what I have said to date I am referring to you, the victims, as the
1st and 2nd child or the 1st and 2nd victim in order to protect your right to anonymity rather than to dehumanise or devalue you.
9 All the charges that you face are charges of what was then called indecent assault on a male. As the circumstances I will shortly recount make clear, the acts the subject of the charges if committed today would be characterised as indecent act with a child, or sexual penetration of a child.
10 The conduct, the subject of Charge 1 concerning the first child, occurred in the presbytery, a place that he was, by the time it occurred, used to visiting when you were there. On this occasion you gave him alcohol, something he was not used to and when he was relaxed by it you pulled down his pants and yours and engaged in repeated acts of masturbating him and yourself, continuing until you ejaculated in his presence. His conduct throughout indicated he was an unwilling and unwitting participant. He ran away from the room and the presbytery as soon as you had finished.
11 This charge is representative of a similar offending on a second occasion. On this occasion, you had taken him on what should have been a treat, a visit to a beach. It was a secluded beach. Using the pretext of sunbaking, you took him into the sand dunes, where you undressed completely and indicated he should do so too. Once lying down, you again, took hold of his penis and began to masturbate him. Again, he was clearly an unwilling recipient of your predatory advances. He rolled away, got dressed and went and waited for you by the car.
12 He was a vulnerable boy. He had been placed in the care of the church and adopted by a Catholic family. He was made to believe that his mother had rejected him when, as he later discovered, she had as a young unmarried Catholic woman, been forced to relinquish him. He had been brought up believing the church was responsible for his welfare and had his best interests at heart. This was a profound betrayal of trust for a person who had been brought up believing that he was beholden to the church.
13 Your second victim was also a vulnerable child. He was experiencing family difficulties and you were seen by him and his family as a confidante and adviser. You gained his trust, only to abuse it.
14 Charge 2 involves touching and masturbating this child and having him touch and masturbate you. He had been given permission to stay at the presbytery one night. Using a pretext, you got into bed with him and slowly built up from touching, in a non sexualised way, to sexualised touching. Eventually you touched his genitals, masturbated him and had him do the same to you. You told him you loved him. This charge is representative of 7 other occasions when you engaged in and had him engage in similar conduct. Many of the subsequent acts occurred at the presbytery, where this victim was a regular visitor. On one later occasion you masturbated until you ejaculated on his stomach. On another occasion, you masturbated the victim until he ejaculated, encouraging him to do so and congratulating him when he did and as I have already noted, you continued to engage in these acts even after you had been confronted by the boy’s parents, and became aware of the mother’s complaint to the Archbishop.
15 Charge 3 concerns conduct which, if it occurred today, would be charged as sexual penetration. At the time of the offending, sexual penetration was not defined to include taking a child’s penis in your mouth, or having a child take your penis in his mouth. It now is, and this is what you did. The act the subject of Charge 3 occurred when you had taken the victim to a YWCA camp at Phillip Island. As was by then your custom, you had joined the victim in his bed. After acts of touching and masturbation, you took the victim’s penis in your mouth and had him do the same to you. This charge is representative of similar conduct on 3 other occasions. The next two occurred at the presbytery. On one of those occasions, you were hosting drinks for parishioners, including the victim’s mother. The victim had gone to bed, as arranged, while you were socialising with the adults. You came into his room, woke him up, masturbated him and performed oral sex on him. The final occasion occurred after you had been warned of the mother’s complaint and had been transferred to a nearby parish. You told the victim he could not stay at the presbytery as the head priest might catch you and booked into a motel with him for the night instead. It was there that this final act occurred.
16 So it is that you now come to be sentenced for these 3 charges of sexual assault of these two males, then boys, now profoundly damaged men in their 50’s.
17 They read their victim impact statements, or parts of them, in open court on the day of the plea hearing. They recounted, eloquently and with insight the confusion, guilt and betrayal that they felt as boys and the anger, grief, despair and sense of hopelessness they have battled all their adult lives. Their lives have taken very different courses. One has never been able to trust, to form relationships, to have a partner or found a family. His employment history is poor and he lives a solitary, hermit like life. The other married, had a family and has always worked, but, as he is only too acutely aware, has been unable to maintain close and trusting relationships with family or friends, or control his temper or moods. He has at times abused alcohol. Although employed all his life, he is crippled by insecurity and unable to take pressure. He lives with the disappointment of feeling that he has been unable to fulfil his potential. Each has at times wanted to end his life and each has needed periods of intensive psychiatric intervention. Each has engaged with counselling over many years, but the patterns of suffering and the consequences for them are well entrenched and they have shown little long term improvement.
18 Each of them has lost his faith.
19 To each of you, I want to say: you are truly courageous men. It is the courage of those who know they have suffered harm as a result of something that was not of their making and was not their fault, but who have had the courage to keep on going and to keep on living. You have not given up on yourselves, or on life, although not surprisingly you mourn the life, the loss of the life that you feel you should have been able to enjoy had this not happened to you. Each of you has had the courage to make your statements and to participate in the court process. You may have been powerless when the offences were committed on you, but by telling your stories, you have shown that you are not powerless now. The church may not have protected you when it should have, but the response of the criminal justice system I hope, will encourage other victims of past sexual abuse to trust that their complaints will be heard and investigated and lead to those who have sexually abused children being held accountable.
20 This was a gross abuse of trust. You were a priest. They were young Catholics, baptised and brought up as such. They were children of parishioners, parishioners themselves and altar boys. To them, you represented the church, its teachings, values and moral precepts, as well as the authority that the church claims over its congregation.
21 The victims were young and each, in his own way, vulnerable.
22 You lied and bullied your way out of exposure and continued to offend against your second victim. You were an adult, they children entrusted to your pastoral care and you had the authority, for them and their parents, of a holy man, an ordained priest in their faith.
23 It is clear therefore that subject to consideration of matters personal to you, denunciation and deterrence are important considerations when considering what constitutes just punishment.
24 You come before the court, at 64, as a very different man from the one who offended against these two boys. By your mid 30's you had taken leave from priestly duties, although you have not been removed from the priesthood, or defrocked. It is in my view remarkable that the church hierarchy has not taken any steps to formally strip you of your priesthood, not after you admitted your sexual misconduct, not after you were charged, not after you indicated your intention to plead guilty. This is not something that adds to the seriousness of your offending, or bears on the sentence to be imposed upon you, but it is a matter I hope the Royal Commission and the other inquiries currently running in to institutional responses to sexual abuse of children will consider.
25 I said at the start you were known as Fr Vears at the time of the offending. You have changed your name from Vears to Walker. That reflects what you now understand to be your true parentage. You grew up believing your mother was a Ms Vears. You were registered as her son. She had a number of relationships with violent men and you were exposed to violence exacted on her by her partners during your childhood. One of her partners was murdered, but it is not clear whether you were still part of the family or had already commenced your studies as a seminarian. It was not until you were grown up that you discovered that Ms Vears’ friend, known to you throughout your childhood as Aunt Rita, was in fact your biological mother and had given you to Ms Vears to raise as her child, at birth. Your biological mother and her husband lived apart for many years, he in England, she in Australia. She had formed a new relationship during his absence and you were the result of that. Some years after your birth her husband returned to Australia and eventually murdered your biological father. Your mother then spent some years in England, including, it would appear, serving a time in gaol for dishonesty offences, before returning to Australia. You maintained contact with your biological and your social mother throughout their lives. It is not clear to me at what stage in your life you discovered your true parentage or the terrible events that led to each of your mothers having a husband or partner murdered. What I can say is it was clearly a far from conventional background and it would have been difficult for you throughout your life hearing people talk about more conventional family lives and knowing that you could not draw on your own experience of such a life.
26
After completing your theological training, you were ordained and served as an assistant priest in 2 parishes for a total of 5 years. You then took up a position as a chaplain at St Vincent's hospital. You told the psychologist
Mr Cummins who assessed that you did not like parish priest duties and did not see your future there. After six months of holding the position as the chaplain at St Vincent's you took leave and never returned to priestly duties.
27
I was told that you initially took leave from your chaplaincy as you were struggling to come to terms with your sexuality. On what I have been told, it seems to me it was more a struggle with your vow of celibacy, or as
Mr Cummins put it, a conflict between your spirituality and your sexuality. From what you told Mr Cummins you had always understood that your sexual orientation was towards men. During your time as chaplain at St Vincent's, you embarked upon what appeared to be a committed same sex, sexual relationship, with a man about the same age as you. After leaving the hospital chaplaincy you lived a secular life, taking employment in the secular workforce. You worked for the Country Fire Authority for a long time. You eschewed celibacy and had a number of long term committed relationships, all with age appropriate men. In more recent years, in particular since you have retired from your secular employment, you have reengaged with a more religious life. You have returned to practising as a Catholic. You have engaged significantly with your parish priest in Frankston and with the Benedictine monks in Yarra Glen. You spend your days in prayer and contemplation. Evidence was given to that effect and a number of testimonials attested to this and to your commitment to your spiritual and contemplative life.
28 Mr Cummins assesses you as being at low risk of sexual reoffending. Having regard to the matters he canvassed and in particular the history since your early 30's of adult age appropriate sexual relationships and to your recent life of semi secluded prayer and contemplation, I accept his opinion as to your low risk of sexual or other reoffending.
29 In those circumstances I consider that it not necessary to give particular weight to specific deterrence and that your prospects for rehabilitation are good. You express remorse for your conduct. I accept that and that clearly bears on my assessment of your prospects for rehabilitation. Although I also accept as Mr Cummins notes, that you tend, even now, to rationalise and minimise your behaviour. I do not accept that you did not know at the time that what you did was legally, as opposed to morally wrong and the weight to be given to your remorse must be tempered by your conduct when first confronted and by your failure in the 35 years after that, to take any steps to confront your wrongdoing until approached by the police, therefore to take any steps to attempt to redress the harm done to these two boys as they were, men as they are now.
30
The maximum penalty for each of these offences was then 5 years imprisonment. Now, of course, such offending carries a higher penalty,
10 years or more. However, it is clear that sexual offending against children has always been regarded as serious. It is just that the sentencing range now available now to reflect the seriousness in which such offending is regarded, allows wider range for sentencing.
31 It is clear that I must sentence you by reference to the maximum sentence then available and having regard to current sentencing practices. That much has been made clear repeatedly and most recently, by the Court of Appeal in the case of Stalio.[1]
[1]Stalio v R [2012] VSCA 120.
32 It is acknowledged that no sentence other than one of imprisonment immediately served is appropriate for the offences. That means that so far as Charge 3 is concerned you come to be sentenced as a Serious Sexual Offender and I must make that declaration and place it on your record. Although that also requires the protection of the community be the paramount sentencing consideration, I accept the submission by the prosecution that there is no need to impose a disproportionate sentence in order to achieve that end.
33 Could you now please stand.
34 Russell Walker, on the three charges to which you have pleaded guilty, you are convicted:
On Charge 1, you are sentenced to be imprisoned for a period of 2 years.
On Charge 2, you are sentenced to be imprisoned for a period of 2 years and 6 months.
On Charge 3, you are sentenced to be imprisoned for a period of 3 years.
35 I make the sentence on Charge 3 the base sentence. Charges 2 and 3 are interlinked. The act, the subject of Charge 3 and the other acts of which it is representative all occurred in the context of acts, the subject of Charge 2, also being engaged in. In my view therefore there should be total concurrency between the sentence on Charge 2 and Charge 3. However Charge 1 concerns a separate victim and I consider that there should be full cumulation between the sentence on Charge 1 and the sentence on Charge 3.
36
That therefore makes a total effective sentence of 5 years. I fix a period of
3 years as the time that you must serve before being eligible for parole.
37 I declare that you have spent 27 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
38 Pursuant to s 6AAA of the Sentencing Act 1991 I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of eight years imprisonment and I would have fixed a period of 6 years as the time that you would have had to have served before being eligible for parole.
39 By reason of these convictions and the nature of them, you are required to be registered for life under the Sex Offender Registration Act 2004. I will ask Mr Burns to accompany my associate now to the dock. I must provide you with a list of the reporting conditions. That has a provision for you signing a receipt acknowledging that you have been provided with it those conditions of reporting. You are not required to sign the receipt but the court record will show in any event that you have been provided with those conditions. I note that you have signed the receipt.
40 I have also been asked to make a forensic sample order and having regard to the nature and seriousness of the offending, I propose to do that. I am directing that that sample be provided by way of buccal sample, that is the provision of a mouth swab. I must warn you that if you do not cooperate in the provision of that sample that the police are authorised to use reasonable force to obtain a forensic sample and that it is at least likely that they will use the more invasive means of obtaining a sample, namely the taking of a blood sample. Do you understand that?
41 HER HONOUR: Now do the orders I pronounce reflect what I said I intended to do?
42 MS MILDENHALL: Yes Your Honour.
43 HER HONOUR: Any further orders?
44 MR BURNS: No Your Honour.
45 HER HONOUR: Thank you. Could you remove Mr Walker please. Adjourn.
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